Lead Opinion
Opinion
In this marital dissolution action, the plaintiff, Michael J. O’Brien, appeals from the judgment of the trial court with respect to several of the financial orders entered at the time of its final decree. Among other orders herein challenged is the court’s unallocated award of alimony and child support for the defendant, Kathleen E. O’Brien, and the parties’ minor children.
The following facts are relevant to our resolution of this appeal. The parties were married in 1985, and three children were bom of the marriage — the first child on August 9, 1994, the second child on July 2, 1996, and the third child on May 19, 2000. The plaintiff filed an action seeking dissolution of the parties’ marriage on January 30, 2008. In its memorandum of decision filed on September 18, 2009, the court rendered judgment dissolving the parties’ marriage, adopting a parenting plan formulated by the parties, and ordering, inter alia, that “[t]he plaintiff shall pay to the defendant, during his lifetime or until the defendant’s death or remarriage, the following percentages of his ‘gross annual earned income from employment,’ as hereinafter defined, as unallocated alimony and child support: a. [45] percent of the plaintiffs ‘gross annual earned income from employment’ from October 1, 2009 until January 30, 2015; b. [c]ommencing February 1, 2015, [40] percent of the plaintiffs ‘gross annual earned income from employment’ through July 2,2024; c. [f]rom July 2,2024, until the death of either party or the defendant’s remarriage, whichever shall first occur as defined by statute, [20] percent of the plaintiffs ‘gross annual earned income from employment’ as alimony.”
On appeal, although the plaintiff presents several claims of error with respect to the court’s unallocated award of alimony and child support, we will focus on the most fundamental of those claims — that in fashioning that award, the court erred in failing to consider and apply the guidelines. On this score, to reiterate, the
We begin our analysis of the plaintiffs claim by identifying the appropriate standard of review. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Notwithstanding the great deference accorded the trial court in dissolution proceedings, a trial court’s ruling . . . may be reversed if, in the exercise of its discretion, the trial court applies the wrong standard of law.” (Citation omitted; internal quotation marks omitted.) Williams v. Williams,
“The legislature has enacted several statutes to guide courts in fashioning child support orders. General Statutes § 46b-84 provides in relevant part: ‘(a) Upon or subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance. . . . (d) In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child. . . .’
“To ensure the appropriateness of child support awards, General Statutes § 46b-215a provides for a commission to oversee the establishment of child support guidelines. General Statutes § 46b-215b requires that ‘[t]he . . . guidelines ... be considered in all determinations of child support amounts .... [T]here shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support .... A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the Commission for Child Support Guidelines under section 46b-215a, shall be required in order to rebut the presumption in such case.’
“The guidelines incorporate these statutory rules and contain a ‘schedule’ for calculating ‘the basic child support obligation,’ which is based on the number of children in the family and the combined net weekly income of the parents. Regs., Conn. State Agencies § 46b-215a-2b (f). Consistent with ... § 46b-215b (a), the guidelines provide that the support amounts calculated thereunder are the correct amounts to be ordered by the court unless rebutted by a specific finding on the record that the presumptive support amount would be inequitable or inappropriate. Regs., Conn. State Agencies § 46b-215a-3 (a). The finding must include a statement of the presumptive support amount and explain how application of
Our Supreme Court has recognized that “the guidelines evolved from an experimental, intentionally nondi-rective and flexible approach to the imposition of standards that are presumptively binding on the court or magistrate .... [I]n general . . . the ensuing work of the commission substantially circumscribes the traditionally broad judicial discretion of the court [to deviate from the guidelines] in matters of child support.” (Emphasis added.) Favrow v. Vargas,
“Neither this court, nor the trial court, is at liberty, where a particular family enjoys a relatively high income, to disregard the significant progress that has been made in standardizing child support awards since the advent of the guidelines. See 42 U.S.C. § 667 (b) (2) (1988). Removing consideration of the guidelines from child support decisions deprives high income families of the fairness and consistency the guidelines require and leaves the trial and appellate courts adrift, unan-chored to the core principles that guide support awards in cases falling within the guidelines’ schedule.” Maturo v. Maturo, supra,
Here, based upon our review of the record, it is evident that the court failed to follow, or even make reference to, the guidelines. Nor did the court, as required by the guidelines, determine the presumptive amount of child support to be awarded thereunder.
The defendant argues, and the dissent agrees, that, because the court issued an unallocated award of alimony and child support, the guidelines do not apply. The law supports no such conclusion. In any marital dissolution action involving minor children, it is axiomatic that the court must fashion orders providing for the support of those children. There is no exception to this mandate, and certainly none for unallocated awards of alimony and child support, which necessarily include amounts for both child support and spousal support. Indeed, our Supreme Court recently confirmed in Tomlinson v. Tomlinson,
For the foregoing reasons, we conclude that the court abused its discretion in entering its unallocated award of alimony and child support without considering and applying the guidelines or the principles espoused therein. It erred, more particularly, by failing to determine the presumptive amount of child support under the guidelines, failing to explain that that amount was inequitable or inappropriate, and failing to explain its basis for deviating from the guidelines.
Financial orders in dissolution proceedings often have been described as a mosaic, in which all of the various financial components are carefully interwoven with one another. Gershman v. Gershman,
As to the court’s challenged award of appellate attorney’s fees, we recognize that that award was issued postjudgment, not at the time of the entiy of the other financial orders which were issued on the date of dissolution. That award is thus not part of the mosaic of final financial orders by which the court initially attempted to chart the parties’ financial future. Even so, as the following authorities make clear,
“General Statutes § 46b-62 governs the award of attorney’s fees in dissolution proceedings and provides that the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in [§ ] 46b-82. These criteria include the length of the marriage, the causes for the . . . 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 [§ ] 46b-81 .... General Statutes § 46b-82. In making an award of attorney’s fees under § 46b-82, [t]he court is not obligated to make express findings on each of [thé] statutory criteria. . . . Courts ordinarily award counsel fees in divorce cases so that a party . . . may not be deprived of [his or] her rights because of lack of funds. . . . Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so. ... An exception to th[is] rule ... is that an award of attorney’s fees is justified even where both parties are financially able to pay their own fees if the failure to make an award would undermine its prior financial orders . . . .” (Citations omitted; internal quotation marks omitted.) Misthopoulos v. Misthopoulos, supra,
Here, the court did not make a finding as to the defendant’s ability to pay her own attorney’s fees. Rather, as previously noted, it opined in its articulation that the plaintiffs appeal was frivolous, and thus that the failure to award the defendant attorney’s fees to defend the appeal would undermine the court’s other financial orders for her maintenance and support. In so doing, the court properly recognized that its award of attorney’s fees is a function of the parties’ financial circumstances. Those circumstances, however, depend directly upon the final financial orders issued by the court in its dissolution judgment. Not until the parties’ assets are finally divided and their respective rights and obligations to give or receive financial support to or from each other are finally determined can the parties’ ability to pay for their own attorney’s fees be ascertained; nor, if it is determined that the parties do have the ability to pay their own attorney’s fees, can it finally be determined if the failure to award appellate attorney’s fees to the defendant would undermine the court’s other financial orders for her maintenance and support. Accordingly, because the corut’s financial orders will be reconsidered in their entirety on remand, its award to the defendant of $50,000 in appellate attorney’s fees must also be remanded for reconsideration in light of the new financial orders that will be issued at that time.
The judgment is reversed only as to the court’s financial orders, including the award of appellate attorney’s fees, and the case is remanded for a new trial on all financial issues.
In this opinion WEST, J., concurred.
Notes
The plaintiff also claims that the court erred in failing to assign to the defendant an earning capacity and thus consider that earning capacity in rendering its financial orders and improperly ordering him to maintain a life insurance policy for the defendant’s benefit for as long as his lifetime alimony obligation to the defendant endures. The dissent has opined that the trial court’s judgment should be affirmed with respect to these additional claims. Because we reverse the judgment of the trial court on the basis explained herein, and remand the case for a new trial on all financial issues, we offer no view on those claims.
The guidelines are set forth in § 46b-215a-1 et seq. of the Regulations of Connecticut State Agencies and are promulgated by the commission for child support guidelines established pursuant to General Statutes § 46b-215a.
With regard to the court’s child support order, the plaintiff also claims that the court failed to consider or base its award on the needs of the children; that the court improperly based the support order on his gross income rather than his net income; that the award exceeds the maximum presumptive percentage of income permitted under the child support guidelines; and that the court improperly based the award on a percentage of his fluctuating income. Again, because we are reversing the court’s financial orders for the reasons set forth herein, and we thus are remanding the case for a new trial on all financial issues, we need not address these additional claims of error.
The plaintiff also claims that when the court later issued a clarification of the judgment, it improperly changed the unallocated award in a substantial and material way. Because we reverse the judgment of the court and the periodic orders will be reconsidered in their entirety, we need not address the court’s purported clarification.
In its memorandum of decision dissolving the parties’ marriage and issuing associated financial orders, the court did not set forth any findings as to the parties’ incomes, careers or earning capacities, other than noting that the “[defendant] has been away from her career for some period” and that “she will take little time in reacquiring her exceptional skills.” On December 3, 2010, in a subsequent articulation in response to an order from this court, the court indicated that: “At the time of the dissolution the court found that [the] defendant was a stay-at-home mother and she served in that capacity at the plaintiffs request. Obviously, after the children [are] grown, she would have earning capacity based on her education and prior abilities. It would be premature to assess earning capacity for some future date. Obviously, the defendant is well educated, earned large sums of money, and she has maintained her skills. . . . The court considered the parties’ lifestyle during the marriage and the necessity of protecting the wife for the rest of her life. As of April 21,2009, according to [the] plaintiff s [financial] affidavit, he had gross earnings and gross income of $17,414 per week gross which resulted in a net [of] $10,900 per week.”
We note that, not only have the guidelines evolved from a guide to a mandate in all cases in which there are minor children, but the treatment of high income situations has also changed. When the guidelines were established in 1991, they explicitly indicated that they did not apply to cases in which the parties’ combined net weekly income exceeded $1500. Rather they established that $1500 was the presumptive minimum level for families exceeding that income. In 1994, the guidelines were revised to establish, inter alia, a new presumptive minimum level of $1750, and eliminated the language that stated that the guidelines do not apply to high income situations. The subsequent revisions to the guidelines, in 1999 and 2005, abide by the principle of the 1994 version, but raise the highest levels of income, and thus the minimum presumptive amounts of child support, to $2500 and $4000, respectively.
As noted, in its initial memorandum of decision dissolving the parties’ marriage, the court made no finding as to the parties’ incomes.
We recognize that there are federal tax benefits to an unallocated award. When an award is categorized as unallocated, since no part of that award is expressly fixed as child support, the Internal Revenue Code provides that the entire amount may be treated as alimony for taxation purposes, and thus deducted as alimony by the payor. See Internal Revenue Code, 26 U.S.C. §§ 71 and 216. There is, however, no statutory or decisional law suggesting that, if a court decides to make an unallocated award of alimony and child support, it need not, as a preliminary matter, determine the presumptive amount of child support under the guidelines. To the contrary, the court’s obligation to fix the presumptive support amount is unchanging, whether or not it ultimately decides to deviate from the guidelines by fashioning such an order. Finally, we do not suggest that, in fashioning an unallocated award, a court must specify how much of that award is earmarked for child support, for such a requirement would frustrate the beneficial tax purposes of an unallocated award. Simply, in fashioning an award of total family support, the court should examine the guidelines, determine the presumptive amount of support thereunder, and then explain its basis for deviating from the guidelines in light of the unfairness or inappropriateness of following them in the case before it. In this regard, the dissent’s analysis conflates a court’s finding of the presumptive amount of child support owed pursuant to the guidelines with the issuance of a child support order in that amount.
Dissenting Opinion
dissenting. I respectfully disagree with the majority that the court improperly failed to consider and apply the child support guidelines
Because I consider all of the plaintiffs claims on appeal, the following procedural history and facts found by the court are relevant. The parties were married in 1985 and are the parents of three minor children bom on August 9, 1994, July 2, 1996, and May 19, 2000.
The court conducted a trial over several days in April and May, 2009, and issued a memorandum of decision dissolving the parties’ marriage on September 18, 2009. The court found considerable disagreement as to the reason for the marital breakdown. The defendant claimed that the plaintiff had had a “roving eye” throughout the marriage and that he had had more than collegial relationships with at least twelve women. She retained a private detective service to monitor the plaintiffs infidelity. The plaintiff claimed that the defendant’s unwarranted accusations of infidelity and her control of many aspects of his life had led to the breakdown of the marriage. The court found that the plaintiff had had out-of-marriage relationships with two women before he left the marital home. The court, however, found that the adultery itself was not the cause of the marital breakdown; rather, the plaintiffs dalliances with certain women over the course of the parties’ marriage had led to the marital breakdown. The court found substantial evidence that the defendant tried to make the marriage succeed, but that the plaintiff did not have a similar interest. The court found the plaintiff primarily at fault for the breakdown of the marriage.
The court stated that, in formulating its orders, it considered General Statutes §§ 46b-81 and 46b-82, as well as the assets, liabilities, and the gross and net incomes of the parties in entering its orders. It also considered the talent, adeptness and expertise of both parties. The court found that the defendant had been away from her career for some time and will need time to reacquire her exceptional skills.
The parties filed numerous postjudgment motions. The court sustained the defendant’s objection to the plaintiffs October 8, 2009 motion to reargue certain of the court’s orders related to the definition of income, income tax disclosure, the marital and vacation homes, health insurance, life insurance and the country club membership.
On appeal, the plaintiff claims, at times in caustic language, that he is entitled to a new trial on the basis of the court’s financial orders, which he claims are contrary to the evidence, the court’s factual findings and the law. Although the plaintiff has asserted numerous claims and arguments, his principal claim appears to be directed at the court’s award of lifetime alimony to
“The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantaT geous position to assess the personal factors significant to a domestic relations case .... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Notwithstanding the great deference accorded the trial court in dissolution proceedings, a trial court’s ruling . . . may be reversed if, in the exercise of its discretion, the trial court applies the wrong standard of law.” (Citations omitted; internal quotation marks omitted.) Maturo v. Maturo,
“As with any discretionary action of the trial court . . . the ultimate [question for appellate review] is whether the trial court could have reasonably concluded as it did.” (Internal quotation marks omitted.) Gianetti v. Gerardi,
I
The plaintiff claims that the court’s “unallocated child support and alimony award” violates the principles underlying the child support guidelines (guidelines); Regs., Conn. State Agencies § 46b-215a-1 et seq.; and Maturo v. Maturo, supra,
The following additional procedural history and facts are relevant to the plaintiffs claim. On April 22,2009, the defendant filed proposed orders that included, among other things, that she receive unallocated support in accord with a proposed formula.
“Alimony and child support orders may either be allocated or unallocated. If allocated, some set amount is awarded for each purpose. If unallocated, the award of the amount to be paid periodically is not designated either as child support or alimony. Because it is unallocated, the benefit to the party charged with paying is that it is a deduction in its entirety for federal income tax purposes; see Commissioner of Internal Revenue v. Lester,
In this case, if the court had articulated findings pursuant to the guidelines, it may well have undercut the tax benefits afforded the parties by an award of unallocated support.
In Tomlinson, a case recently decided by our Supreme Court, the central issue was whether a non-modifiable order of unallocated support could be modified if the party having primary custody of the minor children changed; Tomlinson v. Tomlinson, supra,
The Tomlinson dissolution judgment incorporated the parties’ separation agreement. Id., 542. Pursuant to the agreement, primary physical custody of the parties’ two minor children would be with the plaintiff wife. Id. The agreement also provided that the defendant husband would pay the plaintiff wife unallocated periodic support that was not modifiable in amount. Id., 542-43. Thereafter, the parties agreed that the defendant husband would have primary physical custody of the parties’ children. Id., 543. The defendant husband “filed a motion to modify the [unallocated order], seeking a reduction in the amount of support he paid to the plaintiff [wife] on the ground that custody had changed.” Id. The plaintiff wife opposed the motion on the ground that their separation agreement precluded modification. Id. The trial court granted the defendant
Our Supreme Court determined that the unallocated support could be altered due to a change in custody, noting “[e]ven though an unallocated order incorporates alimony and child support without delineating specific amounts for each component, the unallocated order, along with other financial orders, necessarily includes a portion attributable to child support in an amount sufficient to satisfy the guidelines.” Tomlinson v. Tomlinson, supra,
With regard to the plaintiffs claim that the court’s unallocated award violates Maturo v. Maturo, supra,
II
The plaintiff raises numerous additional claims related to his financial support obligations. He claims that it was improper for the court not to assign an earning capacity to the defendant. I disagree because the court was not required to determine the defendant’s earning capacity and, in any event, a party’s earning capacity is only one of the many factors to be considered by the court in making its financial awards.
“It is well settled that [i]n dissolution proceedings, the court must fashion its financial orders in accordance with the criteria set forth in General Statutes §§ 46b-81 (division of marital property), 46b-82 (alimony) and 46b-84 (child support). All three statutory provisions require consideration of the parties’ amount and sources of income in determining the appropriate division of property and size of any child support or alimony award. . . . [Section] 46b-82 provides in relevant part: In determining whether alimony should be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party . . . 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 and needs of each of the parties and the award, if any, which the court may make pursuant to [§] 46b-81. . . . [Section] 46b-82 describes circumstances under which a court may award alimony. The court is to consider these factors in making an award of alimony, but it need not give each factor equal weight. ... As long as the trial court considers all of these statutory criteria, it may exercise broad discretion in awarding alimony. . . . We note also that [t]he trial court may place varying degrees of importance on each criterion according to the factual circumstances of each case. . . . There is no additional requirement that the court specifically state how it weighed the statutory criteria or explain in detail the importance assigned to each statutory factor.” (Citations omitted; internal quotation
In this case, the court ordered the plaintiff, dining his lifetime or until the defendant’s death or remarriage, to pay the defendant a percentage of his gross annual earned income from employment. Generally, from the time of dissolution until July 2, 2018, the payments are for unallocated support, and beginning on July 2, 2018, the payments are for alimony. See footnote 5 of this dissenting opinion. In issuing its financial orders, the court stated that it had considered the criteria set forth in §§ 46b-81 and 46b-82. The court found, in part, that the defendant “has been away from her career for some period, she will take little time in reacquiring her exceptional skills.” “A judge is presumed to have performed [his] duty properly unless the contrary appears.” (Internal quotation marks omitted.) Miller v. Miller,
In its articulation, the court stated that “[a]t the time of the dissolution, the court found that the defendant was a stay-at-home mother and she served in that capacity at the plaintiffs request.
A
The plaintiff claims that the court’s failure to assign an earning capacity to the defendant was error, as the evidence shows that she has a significant earning capacity and that our law does not permit a court to ignore earning capacity in its alimony determination. The court acknowledged the defendant’s ability to earn significant sums of money prior to 2003 when she left her employment to assume the role of a stay-at-home mother. The court also recognized the defendant’s talents and skills working in the financial markets. But the court concluded that she would need time to reacquire her exceptional skills. The corut found that the defendant would have an earning capacity when the children were grown but that it would be premature to assign her an earning
The plaintiff cites language in Justice Healey’s concurrence in McPhee v. McPhee,
“In construing a statute, no word should be treated as superfluous or insignificant . . . and words and phrases are to be construed according to the commonly approved usage of the language. . . . Webster defines employability as the quality or state of being employable and employable as capable of being employed, specif: physically and mentally capable of earning a wage at a regular job and available for hiring. ... In my view, since both parties are in fact employed, the employability of both parties is equal. This is one factor to be considered under [§ 46b-82]. [E]aming potential has been said to be one of the important factors to be considered; see deCossy v. deCossy, supra, [172 Conn.] 205; and the statute has other terms going to that factor, i.e., vocational skills, occupation . . . health. Arguably, this list may not be exclusive, but the employability of a person is liminal to any meaningful determination of earning potential or earning capacity as that is explicated by other statutory terms. In any event, the majority opinion attenuates the distinction between employability and the other factors in §§ 46b-81 and 46b-82 referred to above.” (Citations omitted; emphasis in original; internal quotation marks omitted.) McPhee v. McPhee, supra,
In this case, I agree that the defendant will be employable, but due to her responsibilities rearing the parties’ children at the time of the trial and her time spent away from the financial industry, the court did not assign her an earning capacity, concluding that it was premature to do so. Moreover, one of the factors the court is to consider under § 46b-82 (a) in the “case of a parent to whom the custody of minor children has been awarded, [is] the desirability of such parent’s securing employment.” The court’s judgment indicates that the court properly considered the statutory requirements in view of the facts of this case. At the time of dissolution, the defendant was a stay-at-home mother, but the court implied in its articulation that she would obtain employment when the youngest of the parties’ three children reaches the age of majority. That implication is supported by the level of alimony support the plaintiff is obligated to pay the defendant several months after the youngest child reaches the age of eighteen.
The plaintiff has not identified a statute or decision that compels the court to determine an earning capacity for both parties when calculating child support or alimony. Compare Chyung v. Chyung,
In addition, the plaintiff claims that the alimony component of its financial award is “riddled with error.” He argues that the lifetime alimony award (1) increases over time in direct contradiction to the court’s finding that the defendant will take little time to reacquire her exceptional skills, (2) serves no legitimate purpose and provides the wrong incentive to the defendant, and (3) reflects outdated gender stereotypes and perpetuates the perception that alimony
As to the claim that the court erred by ordering lifetime alimony that increases over time, the plaintiff ignores the fact that the court’s order is for unallocated support until July 2, 2018. See footnote 5 of this dissenting opinion. If the award is unallocated, “the award of the amount to be paid periodically is not designated either as child support or alimony.” Tomlinson v. Tomlinson, supra,
The plaintiff next asserts that lifetime alimony serves no purpose and is a disincentive to the defendant’s obtaining employment. He also suggests that he is being punished by having to pay the defendant alimony until his or her death or her remarriage. He also reasserts his claim that the defendant has a demonstrated earning capacity. Regardless of those arguments, there is nothing inappropriate about a lifetime award of alimony, if the court, in the exercise of its discretion, after considering all of the statutory factors, believes that it is warranted. My review of the record discloses that the court considered the factors as required by § 46b-82. A dissolution court may place varying degrees of importance on each of the statutory factors according to the circumstances of each case. See Ippolito v. Ippolito,
In accordance with the discretionary standard of review, the issue is not whether I, as the reviewing court, would have exercised my discretion differently, but whether the trial court chose one of a number of reasonable alternatives. See Marquand v. Administrator, Unemployment Compensation Act,
B
The plaintiff further claims in his statement of the issues and in this argument that the court improperly used his gross
In its memorandum, of decision issued on September 18, 2009, the court stated: “The court has carefully considered all of the criteria set forth in §§ 46b-81 and 46b-82 ... in entering its orders. It has also considered the assets and liabilities of the parties as well as their gross and netincome[s\.” (Emphasis added.) In its articulation, the court stated that as “of April 21, 2009, according to the plaintiffs affidavit, he has gross earnings and gross income of $17,414 per week gross which resulted in a net [income] of $10,900 per week.” (Emphasis added.) In light of this explicit language, the plaintiffs assertion in his brief that the court’s memorandum of decision “reflects no awareness or consideration of net earnings or net income” is somewhat confounding. (Emphasis added.)
“It is well settled that a court must base its child support and alimony orders on the available net income of the parties, not gross income. . . . Whether or not an order falls within this prescription must be analyzed on a case-by-case basis. Thus, while our decisional law in this regard consistently affirms the basic tenet that support and alimony orders must be based on net income, the proper application of this principle is context specific. . . . [T]he fact that the alimony and support order was ultimately a function of gross income does not, alone, stand for the proposition that the order was based on gross income. . . . [W]e differentiate between an order that is a function of gross income and one that is based on gross income.” (Citation omitted; internal quotation marks omitted.) Auerbach v. Auerbach,
The plaintiff relies on Morris v. Morris,
For the foregoing reasons, I conclude that the court did not abuse its discretion by failing to assign the defendant an earning capacity or that its financial orders are based on the plaintiffs gross earnings.
Ill
The plaintiffs third claim is that the court abused its discretion by requiring him to maintain $9 million of life insurance as long as his lifetime alimony obligation exists.
The following facts are relevant to this claim. In its memorandum of decision, the court ordered that, as long as the plaintiff is obligated to pay alimony, child support or educational support, “the April 20, 1998 Michael J. O’Brien Family Insurance Trust shall remain in full force and effect and the plaintiff shall be required to provide sufficient funds to the trust on a timely basis for the purpose of paying the premiums for the life insurance policies in which the trust is the beneficiary. For as long as the plaintiff has an obligation to pay alimony, the beneficiary of the [t]rust shall be the defendant. In the event that the plaintiffs obligation to pay alimony to the defendant terminates, the beneficiary of the trust shall be the parties’ children. The remaining life insurance policies with death benefits of [$8 million] shall remain unchanged. . . . The defendant shall remain the beneficiary of the existing Omnicom Group Life Insurance Policy with a current face value of [$1 million], or any successor policy up to [$1 million] face value for as long as the plaintiff has an alimony and/or child support and/or educational support obligation.”
In October, 2010, in response to the plaintiffs motion for review, this court ordered the trial court to articulate several portions of its dissolution judgment, including its order related to life insurance.
The factual basis of the plaintiffs claim is that the premiums for term life insurance increase after a period of time. In a footnote in his brief to this court, he points out that the premiums for a John Hancock term policy for $3 million issued in 1998 remain flat for only fifteen years and that the premiums will increase in 2012. While this may be so, the defendant contends that the plaintiff failed to present evidence of an increase to the trial court. The only evidence of the cost of insurance I could find in the record is the then present cost of the plaintiffs insurance in existence at the time of trial. The plaintiff has not brought to the attention of this court an indication that he offered evidence as to the future cost of life insurance.
“An order for life insurance is very often an appropriate and necessary component of a judgment of dissolution of marriage. . . . Indeed, orders requiring the maintenance of life insurance have been approved on numerous occasions by our courts. . . . [Section] 46b-82 (a) and 46b-84 (f) were amended in 2003 to provide: The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable. . . . These amendments place the burden regarding the availability and cost of the life insurance on the party upon whom the life insurance obligation is to be imposed.” (Citation omitted; internal quotation marks omitted.) Boyne v. Boyne,
The plaintiff also argued that there was no basis in fact for the court to order him to maintain $9 million worth of insurance. The court stated in its articulation that it had “considered the parties’ lifestyle during the marriage and the necessity of protecting the [defendant] for the rest of her life.” The plaintiff acknowledges that ordering security for financial awards falls within the court’s discretion, but he argues that that discretion “is not without limits.” Parley v. Parley,
On the basis of a review of the record, the court’s memorandum of decision and its articulation, I conclude that the court did not abuse its discretion by ordering the plaintiff to maintain $9 million in life insurance as long as he has an obligation to provide child, education or alimony support. The plaintiffs prior conduct provides an appropriate basis for the amount of the order. In 1998, the plaintiff established a trust funded with more than $4 million of life insurance and, by the time of trial, it had been funded with more than $8
The court’s award also finds support in our case law. In Eldridge v. Eldridge,
IV
The plaintiffs fourth claim is that the court improperly awarded the defendant attorney’s fees to defend this appeal. I disagree.
On February 25, 2010, the defendant filed a motion for counsel's fees postjudgment. In her motion, the defendant set forth the postjudgment motions that had been filed by the plaintiff, her objections thereto and the court’s rulings. She also stated that the plaintiff had filed an appeal and that he has control over the majority of the parties’ assets. The defendant represented that she was without sufficient funds to defend the appeal and to prosecute or defend pending postjudgment motions, and she requested funds for that purpose. The motion was heard by the court in June, 2010, at which time the defendant’s counsel presented an affidavit containing a statement of services rendered and disbursements from September 23, 2009 through June 21, 2010. To date the defendant had incurred expenses totaling $39,166.58 and anticipated additional legal expenses of $25,000.
“Section 46b-62 vests in the trial court the discretion to award attorney’s fees. Our Supreme Court has included within the definition of attorney’s fees allowable under § 46b-62 certain costs of litigation .... The criteria to be considered in determining whether an award of attorney’s
In this case, the court awarded the defendant attorney’s fees to prosecute and defend postjudgment motions and the plaintiffs appeal, concluding that “[t]o not award her attomey[’s] fees to defend could undermine other awards.” The court's ruling is in keeping with the exception articulated in Adamo. The court’s findings “do not have to be explicit as long as the record would support a finding that the party to whom the award of attorney’s fees is made lacks sufficient liquid assets with which to pay his or her attorney’s fees or that the failure to award such fees would undermine the court’s other financial orders.” Bee v. Bee,
The record supports the court’s award of attorney’s fees to preserve its financial orders. At the time of the appeal, the defendant was a stay-at-home mother. The financial affidavits of the parties showed that the plaintiff had an annual net income of approximately $567,000, excluding noncash compensation, and assets of appoximately $4 million, excluding unvested stock options. The defendant had an annual net income from dividends and interest of $11,784 and assets of $2.15 million, including her one-half share of the parties’ two houses. I conclude that the court did not abuse its discretion by awarding the defendant attorney’s fees to defend this appeal.
V
The plaintiffs fifth claim is that the court improperly modified its judgment in a material way nine months after the judgment was issued when it ruled on the defendant’s motion for clarification and correction.
On April 15, 2010, the defendant filed a motion for clarification and correction, postjudgment. The defendant asked the court, among other things, to clarify whether “[smarting the month after the parties’ youngest child turns eighteen, i.e., beginning June 1, 2018, the [40] percent of ‘gross annual earned income from employment’ paid to the defendant by the plaintiff through July 2, 2024, is paid as alimony, rather than ‘unallocated alimony and support.’ ” The court issued a clarification on June 23, 2010, stating in relevant part: “b. Commencing February 1, 2015, [40] percent of the plaintiffs gross annual earned income from employment through July 2, 2018 as unallocated alimony and child support; c. From July 2, 2018, until the death of either party or the defendant’s remarriage, whichever shall first occur as defined by statute, [20] percent of the plaintiffs gross annual earned income from employment as alimony.” (Emphasis added; internal quotation marks omitted.)
On appeal, the plaintiff claims that the court imper-missibly modified its judgment by amending the year in which his unallocated support payment of 40 percent of his gross income ends and he is to begin paying 20 percent of his gross income as alimony.
The plaintiff argues that the motion for clarification was not predicated on the modification criteria of General Statutes § 46b-86
Our Supreme Court has stated that a court has an “interest in preserving the integrity of its judgments. Specifically, this court previously has recognized that it is within the equitable powers of the trial court to fashion whatever orders [are] required to protect the integrity of [its original] judgment.” (Internal quotation marks omitted.) Rocque v. Light Sources, Inc.,
Moreover, by correcting the year in which the plaintiffs obligation to pay 40 percent of his gross annual earned income ended, i.e., from 2024 to 2018, and his obligation to pay 20 percent of his gross annual earned income began, the court reduced the plaintiffs obligation to pay 40 percent of his income to the defendant by six years. The plaintiff therefore is not aggrieved by the court’s correction. See General Statutes § 52-263.
Respectfully, for the foregoing reasons, I would dismiss the plaintiff’s claim concerning modification of the judgment and affirm the judgment in all other respects.
See Regs., Conn. State Agencies § 46b-215a-1 et seq. The defendant also claims that the court failed to abide by our Supreme Court’s decision in Maturo v. Maturo,
The parties negotiated a parenting plan, which the court approved and incoiporated into the judgment of dissolution.
The court found, pursuant to the plaintiffs financial affidavit, that he had gross income of $17,414 per week, which resulted in net income of $10,900 per week. Although the trial court did not make further specific findings of fact as to the parties’ employment, for the purposes of context, my review of the record discloses that both of the parties are graduates of Cornell University. The plaintiff attended law school during the first three years of the marriage and continuously practiced law in New York City thereafter. At the time of trial, the plaintiff was general counsel to Omnicom Group, Inc. After graduating from college, the defendant was employed in the financial industry in New York until 2003, and earned a substantial salary. In 2006 and 2007, she was engaged part-time in a recruiting business. She has been unemployed since 2008.
In my view, the term “unallocated child support and alimony” has the potential to be confusing because it creates the impression that an award designated for child support has been made. Therefore, in this opinion, I refer to the court’s order simply as “unallocated support.” See Tomlinson v. Tomlinson,
The court ordered: “The plaintiff shall pay to the defendant, during his lifetime or until the defendant’s death or remarriage, the following percentages of his gross annual earned income from employment, as hereinafter defined: a. [45] percent of the plaintiffs gross annual earned income from employment from October 1, 2009 until January 30, 2015, as unallocated alimony and child support; b. Commencing February 1, 2015, [40] percent of the plaintiffs gross annual earned income from employment through July 2, 2018, as unallocated alimony and child support; c. From July 2, 2018, until the death of either party or the defendant’s remarriage, whichever shall first occur as defined by statute, [20] percent of the plaintiffs gross annual earned income from employment as alimony.”
The court also ordered the parties to share the cost of their children’s private school education. The court retained jurisdiction to enter additional education support orders pursuant to General Statutes § 46b-56c.
In its judgment, the court ordered the plaintiff to transfer his membership in the Stanwich Country Club to the defendant. See O’Brien v. O’Brien,
The plaintiff offers a litany of arguments and subarguments to support his claim. He contends that (1) there was undisputed evidence of the defendant’s significant earning capacity, which the court acknowledged; (2) our law does not permit the court to ignore earning capacity in its alimony determinations; (3) there is no valid reason justifying the court’s failure to impute some earning capacity to the defendant for the purposes of alimony determination; (4) the alimony component (a) increases over time, (b) serves no legitimate purpose, (c) provides no incentives to the defendant, (d) reflects outdated gender stereotypes (e) peipetuates the perception that alimony laws are applied differently based on gender, and (f) improperly uses gross earnings as the basis for the order; and (5) the court’s broad definition of gross earnings (a) allows for double dipping and (b) is otherwise improper. I am not persuaded by these arguments.
In his brief, the plaintiff acknowledges that the standard of review applied to financial orders in a dissolution action is the abuse of discretion standard. He contends, however, that the plenary standard should be applied in this case as the issues concern matters of statutory interpretation, the court’s conclusions of law or mixed questions of law and fact. I do not agree.
Child support in a dissolution of marriage action is controlled by General Statutes § 46b-84, which provides in relevant part: “(a) Upon . . . dissolution of any marriage . . . the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance. . . .” For guidance in the awarding of child support, “[t]he legislature . . . has provided for a commission to oversee the establishment of child support guidelines ... ‘to ensure the appropriateness of child support awards . . . .’ General Statutes § 46b-215a.” Maturo v. Maturo, supra,
The plaintiff also claims that in fashioning its support award, the court apparently did not give any consideration to the property division; see part II of this dissenting opinion; and custody schedule, based its award on an open-ended, uncapped percentage of his fluctuating income, failed to relate the award to the children’s demonstrated need and failed to make the required finding of the amount of support indicated under the guidelines. In his reply brief, the plaintiff states “[t]he trial court here, as best we can determine, never consulted the [g]uidelines or [g]uidelines principles . . . .” (Emphasis added.) The plaintiff’s statement is based on speculation, hi any event, there was no reason for the court to consult the guidelines because its support order was unallocated.
The relevant issue in Maturo was whether “the trial court improperly ordered [the husband] to pay 20 percent of his annual net cash bonus award as child support.” Maturo v. Maturo, supra,
The trial court rendered its judgment in this action on September 18, 2009. Our Supreme Court issued its decision in Maturo on May 4, 2010.
The orders stated in relevant part: “The plaintiff shall pay to the defendant, during his lifetime, until the defendant’s death or remarriage, the following percentages of his ‘gross annual earned income from employment,’ as hereinafter defined, as unallocated alimony and child support ....
“The plaintiff shall take no action for the purpose of defeating the defendant’s timely right to receive unallocated alimony and child support and/or alimony and, in particular, shall take no action to reduce, divert, delay or defer income for the purpose of reducing, limiting or delaying the plaintiffs unallocated alimony and child support and/or alimony obligation to the defendant.
“In the event of the termination of the alimony payments hereof during the minority of the children, the parties shall determine the amount of child support to be paid by the plaintiff during his lifetime to the defendant for the support of each of the minor children and, in the event they are unable to agree, the amount of such child support payments shall be determined by a court of competent jurisdiction. Said amount shall be paid retroactive to the date of the termination of alimony.”
The defendant subsequently filed amended proposed orders, but the quoted portions of the orders did not change.
In his trial brief, the plaintiff contended that “the amount of alimony requested is extreme and outrageous and should be ignored. . . . [T]he suggested alimony structure presents tax problems that should be avoided. A separate child support order should be entered that is not intertwined with the alimony. If the court orders alimony despite the plaintiffs objection, despite the defendant’s ability to support herself, it should be a separate order for a limited time period.” He also stated, his “cash flow recommendation ... is entirely focused on the children. If [the defendant] supports herself, he is offering to pay very high child support so very little will change in the lives of the children. Argument Chart #8 . . . shows the extreme generosity of [the plaintiffs] child support proposal. [The plaintiff] urges the court to accept this proposal that focuses on the children.”
The plaintiffs counsel stated, in part, during closing argument: “[W]e hope the court doesn’t do anything with alimony, but if the court is going to do anything with alimony, we certainly urge the court, have alimony, have child support, have them separate. We all know what we’re doing. We all know what the tax consequences of that. But this structure, with these ages of kids, with this many kids and this close bunched up causes tax problems that the computer programs can’t figure out.”
Counsel for the plaintiff argued, in part, with respect to the guidelines as follows: “Now, what the guideline instructions say is what you’re not supposed to do is what I’m about to do by way of example. You’re not supposed to continue extrapolating from that number. But if one did, by way of example, in the next 200 — so, if in the first 200, the percentage falls from forty to under twenty, in the next 200 the seventeen has to fall. It’s actually a progression that would accelerate. It has to fall by at least 50 percent again. So, by the time you got out to a net of 400, the guideline amount would be something like 8 percent. [The plaintiff¶ is willing to pay 35 percent. It’s eight times the extrapolation from the guideline, and you’re not supposed to extrapolate from the guideline because extrapolating from the guideline produces too high of a number. It’s four times the highest guideline amount.” (Emphasis added.)
“Alimony, if in compliance with the provisions of [Internal Revenue Code] § 71, is taxable to the payee and deductible to the payor pursuant to [Internal Revenue Code] § 216 .... Child support is not taxable/deductible. To qualify as taxable/deductible alimony, a stream of payments must be cash received by or on behalf of a spouse under a divorce . . . instrument which does not designate such payments as not taxable/deductible.” M. Frumkes, “Unallocated Alimony and Child Support Can Be All Taxable/ Deductible Alimony,” 80 Fla. B. J., no. 6 (June 2006) p. 72. “Generally, whether a payment is alimony depends on [Internal Revenue Code §] 71 (b). Alimony and separate maintenance payments (coEectively referred to as alimony) are taxable to the recipient and deductible by the payor. When a taxpayer makes support payments under a court order issued pending a divorce, the parties may specify the amount of alimony in a separation agreement. If neither a divorce decree nor a separation agreement exists, payments made under court orders that don’t specificaUy aEocate a portion of the amount as alimony or clüld support but rather as household maintenance may be deemed alimony if they meet the requirements in section 71 (b) (1).” C. Nash & T. Quinn, “Court Says Unaflocated Support Payments Are Alimony,” J. of Accountancy (Nov. 2003), avaüable at www.joumalofaccountancy.com/ Issues/2003/Nov/CourtSaysUnaEocatedSupportPaymentsAreAEmony (last visited October 1, 2012).
With regard to its award of unallocated support, the court also ordered: “In the event of the termination of the alimony payments hereof during the minority of the children, the parties shall determine the amount of child support to be paid by the plaintiff during his lifetime to the defendant for the support of each of the minor children and, in the event they are unable to agree, the amount of such child support payments shall be determined by a court of competent jurisdiction. Said amount shall be paid retroactive to the date of the termination of alimony.” If the plaintiffs obligation to pay alimony to the defendant ends while there are still minor children and the parties are unable to reach an agreement as to the amount of child support the plaintiff is obligated to pay and they turn to the court, the child support guidelines and Maturo, of course, would have to be considered. See Tomlinson v. Tomlinson, supra,
The plaintiff also claims that the court’s broad definition of gross earnings allows for “double dipping.” I understand the claim to be that the court awarded the defendant certain moneys as a property settlement and also ordered the plaintiff to pay the defendant a percentage of those moneys again as unallocated support. I agree with the defendant’s position that, although the same type of assets are referenced in both sections of the court’s judgment of dissolution, the court did not award the defendant the same assets twice.
The plaintiff is correct when he points out that the court erred when it found that the plaintiff had requested that the defendant become a stay-at-home mother. The plaintiff testified that when the defendant decided to leave her employment at Credit Suisse, he “did not object.” The defendant testified that she left Credit Suisse with the plaintiffs knowledge and consent.
The defendant testified in part on direct examination as follows:
“[The Defendant’s Counsel]: Now, with regard, again [to] being a full-time mother, is there any significance to the ages of your children and your desire to be a full-time mother?
“[The Defendant]: Yes.
“[The Defendant’s Counsel]: What significance?
“[The Defendant]: I have a teenager, a preteen and an eight year old. I think that period of time that spans later lower school to high school is critical. And . . . there’s so many things academically, emotionally, physically that are changing, and I think it’s critical to be there with the children. That was always our desire.
“[The Defendant’s Counsel]: When you say it was — was this a decision— was this a plan that you had worked out with [the plaintiff]?
“[The Defendant]: Yes.”
At trial the plaintiff acknowledged that the defendant had been their children’s primary caregiver at various times during their marriage, notably from 2003 when she left her employment until the time of trial. Pursuant to the parties’ stipulated parenting plan, their minor children shall reside primarily with the defendant.
Dissolution of the deCossy marriage was granted on the basis of the husband’s wilful desertion of the defendant wife. deCossy v. deCossy, supra,
The plaintiff also claims that the award of lifetime alimony reflects outdated gender stereotypes and the perception that dissolution laws are applied differently on the basis of gender. There is no record that these claims were raised in the trial court. I therefore decline to review them. See Adamo v. Adamo,
The court defined gross annual earned income from employment as follows: “ ‘[GJross annual earned income from employment’ shall be broadly defined to include any and all earnings of any nature whatsoever actually received by the plaintiff, or which the plaintiff is entitled to receive, from any and all sources relating to services rendered by the husband by way of his past, current or future employment, including but not limited to salary, bonus, incentive compensation, exercisable stock options, stock grants, restricted stock awards, grants and/or units, warrants, stock awards and option awards granted but not accepted, stock grants and option grants awarded but deferred, dividends on stock awards and option awards, contract payments, stock appreciation rights, performance share awards, performance stock units, dividend equivalents, stock payments, deferred stock, qualified performance based compensation, commission payments, severance payments, profit participations/distributions and voluntary payments made to qualified and nonqualified retirement plans for his benefit both paid and/or deferred. Upon vesting of any stock and/or options, the plaintiff shall immediately notify the defendant. The plaintiff shall, as soon as practical when notified by the defendant in writing, exercise her share of the stock and/or options and sell the resulting stock and deliver to her the proceeds of the sale of the stock within five . . . business days, net of all costs of exercise and sale, including federal and state taxes which he is required to pay as the legal owner of the stock and/or options.
“Deferred income or compensation that the plaintiff has no control over shall not be considered as part of the plaintiffs ‘gross annual earned income from employment’ until said deferred income or compensation is actually received, or capable of being received by the [plaintiff] and is taxed as income.”
In Ms brief the plaintiff stated that the court ordered him to maintain $9 million in mostly term life insurance for the remainder of Ms life. The statement needs amplification. The court ordered Mm to maintain the life insurance as long as he had an obligation to pay child, educational or alimony support. Significantly, the plaintiff does not challenge the amount of life insurance he is required to maintain for the benefit of Ms children.
This court ordered the trial court to articulate: “(3) whether it considered the cost to the [plaintiff], going forward, of paying the life insurance premiums as ordered by the court, and, if so, what was the court’s evidentiary basis for determining that he could afford those premiums ‘for the remainder of [the defendant’s] life,’ if she did not remarry, (4) whether it intended that the cash value of the life insurance policies in the Michael J. O’Brien Family Trust be available to pay the premiums of those policies, (5) whether it intended that its order concerning the life insurance policies apply only for the life of the term policies, or whether the [plaintiff] is required to purchase new or replacement policies as the term policies end, (6) to what life insurance policies was the court referring when, after discussing the $8 million in life insurance in the Michael J. O’Brien Family Trust, it stated that ‘the remaining life insurance policies with death benefits of [$8 million] . . . shall remain unchanged,’ and (7) its ‘logical and factual basis’ for awarding the [defendant] up to [$9 million] in life insurance for the remainder of her life, assuming she does not remarry.”
In the trial court and on appeal, the plaintiff does not claim that the amount of the attorney’s fees is unreasonable.
“[A] motion for clarification is an appropriate procedural vehicle to ensure that the original judgment is properly effectuated. . . . Motions for clarification may not, however, be used to modify or to alter the substantive terms of a prior judgment . . . and we look to the substance of the relief sought by the motion rather than the form to determine whether a motion is properly characterized as one seeking a clarification or a modification.” (Internal quotation marks omitted.) Von Kohorn v. Von Kohorn,
The plaintiff asserts that his claim is supported by this court’s recent decision in Von Kohorn v. Von Kohorn, supra,
General Statutes § 46b-86 is entitled “Modification of alimony or support orders and judgments.”
General Statutes § 52-263 provides the right of appeal if “either party is aggrieved by the decision of the court or judge upon any question or questions . . . arising in the trial . . . .” (Emphasis added.) See also Practice Book § 61-1.