Oudheusden v. Oudheusden , 190 Conn. App. 169 ( 2019 )

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PENNY OUDHEUSDEN v.
PETER OUDHEUSDEN
(AC 41050)
Alvord, Keller and Eveleigh, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court
dissolving his marriage to the plaintiff and issuing certain financial
orders. The defendant claimed that the trial court improperly double
counted a certain marital asset for purposes of property division and
spousal support awards, and abused its discretion in failing to make
equitable orders in the division of the marital estate. Held:
1. The trial court impermissibly double counted the value of the defendant’s
businesses for purposes of the property division and spousal support
awards; that court, which awarded the plaintiff 50 percent of the fair
market value of the defendant’s businesses and $18,000 per month in
lifetime alimony, failed to take into account that the defendant’s annual
gross income was included in the fair market value of his businesses,
and because his businesses provided the stream of income with which
he was to pay the monthly alimony award, the defendant was left without
resources with which to comply with the court’s orders and had no
other assets available to satisfy all of the court-ordered payments.
2. The trial court abused its discretion in failing to make equitable orders
in the division of the marital estate, as the court’s financial awards were
inequitable in that the court deprived the defendant of the means with
which to comply with those orders when it awarded the plaintiff 50
percent of the value of the defendant’s businesses, which provided his
stream of income; moreover, the facts in evidence did not support the
court’s award of nonmodifiable, lifetime alimony to the plaintiff, the
effect of which was to bar the defendant from seeking a modification
even if he became seriously ill or the businesses failed to thrive or
survive through no fault of his own, and which did not take into account
his ability to generate the same amount of income as he grew older or
contemplate his retirement, and the plaintiff’s testimony at trial pre-
cluded the conclusion that her physical condition and age rendered
her permanently incapable of earning any income from any type of
employment, as it was evident from the plaintiff’s testimony that she
expected to secure some type of employment, even if the salary was
less than what she would have liked it to be.
Argued February 14—officially released May 21, 2019
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk, and tried to the court, Tin-
dill, J.; judgment dissolving the marriage and granting
certain other relief, from which the defendant appealed
to this court; thereafter, the court, Tindill, J., granted
the defendant’s motion for clarification. Reversed in
part; further proceedings.
Yakov Pyetranker, for the appellant (defendant).
Scott T. Garosshen, with whom was Kenneth J.
Bartschi, for the appellee (plaintiff).
Opinion
ALVORD, J. The defendant, Peter Oudheusden,
appeals from the judgment of the trial court dissolving
his marriage to the plaintiff, Penny Oudheusden, and
entering certain financial orders. On appeal, the defen-
dant claims that the court (1) improperly double
counted a marital asset1 for purposes of the property
division and spousal support awards, and (2) abused
its discretion in failing to make equitable orders in the
division of the marital estate. We agree and, accord-
ingly, reverse in part the judgment of the trial court and
remand the case for a new trial on all financial issues.
The record reveals the following facts, as found by
the trial court2 or undisputed, and procedural history.
The parties were married on June 29, 1985, and have
three adult children. On April 1, 2016, the plaintiff com-
menced the present action against the defendant seek-
ing to dissolve their thirty year marriage on the ground
of irretrievable breakdown. Following extensive discov-
ery disputes, the dissolution trial took place over nine
days in April and May, 2017. The defendant was self-
represented at the time of trial.3 During the trial, the
court heard testimony from the plaintiff, the defendant
and each of their expert witnesses, and the court admit-
ted 199 exhibits into evidence.
The plaintiff was born in Greenwich in 1961. The
parties started dating in high school. Prior to their mar-
riage in 1985, the plaintiff obtained an undergraduate
degree in international marketing and a master’s degree
in education. She was employed as a teacher until 1988,
when she left the workforce to raise their family. The
parties agreed that the plaintiff would remain a full-
time homemaker, and the defendant would provide the
financial support for the family.
The defendant has a double major in English and
computer science. He had worked at various companies
during the earlier years of the marriage, which often
resulted in the family moving from one location to
another. In 1997, the defendant started his own business
called Connecticut Computer & Consulting, Inc. At that
time, the defendant was the sole employee of the corpo-
ration, which is a consulting practice with clients in
the pharmaceutical industry. The defendant formed his
second business, WriteResult, LLC, a limited liability
company, in 2007. This company complements Con-
necticut Computer & Consulting, Inc., and provides ser-
vices to the same or comparable clients. WriteResult,
LLC, uses different computer technologies to collect
patient data, and there is a heavy hardware component
involved in its work. The defendant owns and manages
both businesses, and he derives all of his income from
his self-employment. The plaintiff always has been sup-
portive of the defendant’s business endeavors.
The plaintiff testified that, during the course of the
marriage, the defendant abused her emotionally and,
at times, physically. The plaintiff also was troubled by
the defendant’s consumption of alcohol. Problems sur-
faced early in the marriage when the defendant told
the plaintiff that their financial situation was dire, and
he continued to voice his concerns about expenditures
throughout the marriage. The plaintiff believed the
defendant’s statements because she trusted him, and
she never sought documentation to verify their mone-
tary problems. Creditors called frequently. She
acknowledged that she had been aware from the begin-
ning of the marriage until the time she initiated the
dissolution proceedings that they had outstanding fed-
eral and state tax liabilities.
Nevertheless, the parties purchased a home in Green-
wich for $1.5 million in 2002, and proceeded to engage
contractors to perform improvements and renovations
to the marital property. Their three children attended
private and public schools before their college years.
Following their secondary education, one son attended
law school and one son attended medical school. Their
daughter attended Dartmouth College. The parties were
in total agreement when it came to sending their chil-
dren to these educational institutions, and the defen-
dant paid all of the substantial expenses from his
earnings.
At the time of trial, the plaintiff was fifty-five years
old and the defendant was fifty-eight years old. With
respect to their health, the plaintiff had a little bit of
trouble with her hearing, and she testified that she
recently had ordered hearing aids. She also testified
that she had been diagnosed with melanoma on the
side of her nose in 2011, had it surgically removed, and
was cancer free at that point. The defendant testified
that he was in good health. He acknowledged that he
considered himself an alcoholic, but he indicated that
he had not had a drink in nearly six months. With
respect to employment, the plaintiff was not working
and no longer had a current license to teach. The defen-
dant had hoped to retire when he reached sixty-five
years of age and, if possible, engage in some limited
consulting work. He testified that the parties did not
have a retirement account.
Aside from the two businesses, the only other signifi-
cant marital property was the marital home in Green-
wich. It had an appraised value of $1.7 million, but
was encumbered by two mortgages and tax liens. The
defendant ceased making payments on the first mort-
gage in October, 2015, and a foreclosure action was
pending at the time of trial. The parties had significant
debts. In addition to federal and state tax liabilities,4
the plaintiff and the defendant, who previously had been
represented by counsel in this action, owed substantial
fees to their counsel and their experts.
The fair market value of the defendant’s two busi-
nesses was a key issue in these proceedings. The plain-
tiff’s expert, James R. Guberman, and the defendant’s
expert, Mark S. Gottlieb, provided extensive testimony
as to the methodologies used and the conclusions
reached as to valuation. The court credited Guberman’s
testimony that the combined fair market value of Con-
necticut Computer & Consulting, Inc., and WriteResult,
LLC, was $904,000. The court further found that the
defendant’s gross annual income from these businesses
was $550,000.
The parties submitted current financial affidavits and
proposed orders to the court at the conclusion of the
trial. During his cross-examination of Guberman, his
closing argument, and in his proposed orders, the defen-
dant cautioned the court against double counting the
value of his businesses and his salary in dividing the
marital estate and in awarding alimony. Additionally,
the plaintiff’s counsel, in his closing argument and in the
plaintiff’s proposed orders, acknowledged the danger
of double counting an asset for purposes of the property
division and support awards. In his closing argument,
the plaintiff’s counsel stated: ‘‘[A]nd I will concede this
to [the defendant]. And this is reflected in paragraph
2.4 of article two of our proposed orders that were
filed today.5 Whatever value the court attributes to the
business, the court has to, and should back out a reason-
able salary for the officer and owner of the company.
‘‘Because if the court is going to set a support order
based on his income, it would not be fair and equitable
to also ask that he pay an equitable distribution based
on that as well.
‘‘That would be double dipping. That was what [the
defendant] was trying to get to when he was going
through his examination. Because that salary is—of
the officer of the company—the owner of the company,
is included in the overall valuation. So that must be
backed out.’’ (Emphasis added; footnote added.)
The court issued its memorandum of decision on
November 3, 2017. After concluding that the parties’
marriage had broken down irretrievably, the court
made, inter alia, the following ‘‘key findings’’: (1) The
defendant was at fault for the irretrievable breakdown
of the marriage;6 (2) the defendant had been the sole
financial support of the family since 1988, and the plain-
tiff had made significant, nonfinancial contributions to
the family; (3) the self-employed defendant owned two
businesses and had, for the past thirty-two years, inten-
tionally concealed the exact nature of the businesses
and marital finances from the plaintiff; (4) the defen-
dant’s gross annual income was $550,000; (5) the com-
bined value of the defendant’s two businesses was
$904,000; (6) a lifetime periodic alimony award to the
plaintiff was appropriate and necessary; (7) the defen-
dant’s failure to maintain the marital home and his
failure to make mortgage payments since October 1,
2015, caused a loss of equity in the home in the amount
of $162,339.89; and (8) the plaintiff’s testimony was
credible, while the defendant’s testimony regarding his
annual income, profit, cash flow, business and personal
expenses was not credible.
In its memorandum of decision, the court entered
orders regarding alimony, property distribution, and
attorney’s fees. The court awarded the plaintiff alimony
in the amount of $18,000 per month, payable November
13, 2017, and every month thereafter, until the plaintiff’s
death, remarriage, cohabitation or civil union. The ali-
mony award was nonmodifiable as to duration and
amount. The defendant was responsible for all out-
standing mortgage, insurance and taxes due and owing
on the marital home. The defendant was further ordered
to pay the plaintiff $221,677 no later than June 1, 2018,
which represented 100 percent of the net equity in the
marital home if the defendant had made the mortgage
payments when due. With respect to the defendant’s
two businesses, he was to retain 100 percent ownership,
but was ordered to pay the plaintiff 50 percent of the
fair market value, i.e., $452,000, no later than February
28, 2018. The defendant was responsible for all out-
standing federal and state taxes, including interest and
penalties, for the years 1985 through 2015, and the
defendant was responsible for any tax liability for 2016.
The court ordered the defendant to obtain and maintain,
within forty-five business days of the court’s decision,
a ten year term life insurance policy naming the plaintiff
as the sole beneficiary in the amount of $2 million.7
Finally, the defendant was ordered to pay all of the
plaintiff’s legal, expert, and professional fees, which
totaled $223,398. The fees were to be paid no later than
December 31, 2017, or, alternatively, the defendant was
to obtain a written, agreed upon installment plan with
the named creditors no later than December 31, 2017.
The defendant appealed from the court’s judgment
on November 14, 2017.8 On March 7, 2018, the defendant
filed a postjudgment motion for clarification. In his
motion, he stated that the court had found his gross
annual income to be $550,000. The defendant requested
clarification as to the following: ‘‘Is the $550,000 amount
the defendant’s earning capacity? If so, is it his earning
capacity at his two wholly owned companies, or what
he can realistically be expected to earn elsewhere inde-
pendent of said companies?’’ On April 3, 2018, the court
granted the defendant’s motion and responded to the
request as follows: ‘‘The court’s finding that the [d]efen-
dant’s annual gross income is $550,000, is not a finding
of earning capacity, but of (gross) income from Con-
necticut Computer & Consulting, [Inc.], and WriteRe-
sult, LLC.’’
We begin our analysis of the defendant’s claims by
setting forth the standard of review. ‘‘An appellate court
will not disturb a trial court’s orders in domestic rela-
tions 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 determin-
ing whether a trial court has abused its broad discretion
in domestic relations matters, we allow every reason-
able presumption in favor of the correctness of its
action. . . . Furthermore, [t]he trial court’s findings [of
fact] are binding upon this court unless they are clearly
erroneous in light of the evidence and the pleadings in
the record as a whole. . . . A finding of fact is clearly
erroneous when there is no evidence in the record to
support it . . . or when although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed.’’ (Citation omitted; internal
quotation marks omitted.) Steller v. Steller, 181 Conn.
App. 581, 587–88, 187 A.3d 1184 (2018).
I
The defendant first claims that the court improperly
double counted a marital asset for purposes of property
division and spousal support awards. Specifically, the
defendant argues that the court improperly awarded
the plaintiff alimony from income that was generated
by the defendant’s two businesses and awarded her 50
percent of the value of those businesses. The plaintiff
counters that ‘‘an impermissible double dip would have
occurred here only if the trial court had given 100 [per-
cent] ownership of the businesses to [the] [p]laintiff
and then ordered [the] [d]efendant to pay alimony based
on income from an asset he no longer had as a result of
the transfer, making compliance infeasible.’’ (Emphasis
omitted.) We agree with the defendant that, under the
circumstances of this case, the court effectively
deprived the defendant of his ability to pay the $18,000
monthly alimony award to the plaintiff by also distribut-
ing to the plaintiff 50 percent of the value of his busi-
nesses from which he derives his income.
The general principle is that a court may not take an
income producing asset into account in its property
division and also award alimony based on that same
income. See Callahan v. Callahan, 157 Conn. App. 78,
95, 116 A.3d 317, cert. denied, 317 Conn. 913, 116 A.3d
812 (2015) and cert. denied, 317 Conn. 914, 116 A.3d 813
(2015). The plaintiff claims that because the defendant
retained 100 percent of the ownership in his two busi-
nesses, he still had an income stream from which to
make the alimony payments. The plaintiff argues that
the case of O’Brien v. O’Brien, 326 Conn. 81, 161 A.3d
1236 (2017), requires the transfer of the entire income
producing asset to the party receiving support in order
to constitute an impermissible double counting situa-
tion. The plaintiff cites the following language from
O’Brien in support of this position: ‘‘A trial court’s ali-
mony award constitutes impermissible double dipping
only if the court considers, as a source of the alimony
payments, assets distributed to the party receiving the
alimony.’’ (Emphasis in original.) Id., 120. We do not
read O’Brien as expansively as the plaintiff. To do so
would lead to an unworkable and nonsensical result.
If we follow the plaintiff’s interpretation of O’Brien,
a court could award 99 percent of the income producing
asset to the party receiving alimony and still not engage
in impermissible double counting of marital assets. We
conclude that O’Brien does not require the application
of a bright line rule when a court double counts an
income producing asset for purposes of property distri-
bution and support awards. In marital dissolution cases,
each situation is fact specific and the court, in formulat-
ing its orders, must take into account all of the assets
in the marital estate as well as other statutory considera-
tions. See General Statutes §§ 46b-81 and 46b-82. ‘‘The
court must be free to shape its awards in a manner
which it determines is fair and equitable under the cir-
cumstances.’’ Sweet v. Sweet, 190 Conn. 657, 662, 462
A.2d 1031 (1983). For that reason, there can be no gen-
eral prohibition against awarding alimony from an
income producing asset that has been partially con-
veyed to the party receiving support if, for example,
there are other assets available to fund alimony pay-
ments. Moreover, an actual conveyance of the interest
in the income producing asset to the party receiving
alimony is not required to constitute impermissible dou-
ble counting if the paying party in practical effect has
been deprived of the value of that asset.
In the present case, the court failed to take into
account that the defendant’s annual gross income,
which the court determined to be $550,000, was
included in the fair market value of the defendant’s two
businesses. As the court acknowledged in its April 3,
2018 clarification, its determination of the defendant’s
income flowed solely from the defendant’s businesses
and was not based on his earning capacity.9 Neverthe-
less, the court awarded the plaintiff 50 percent of the
$904,000 fair market value of the businesses and
awarded the plaintiff $18,000 per month in lifetime ali-
mony. These orders ignored the economic relationship
between the value of the businesses and the defendant’s
ability to earn income. The defendant’s businesses pro-
vided the only significant stream of income by which
the defendant could meet his alimony and other court-
ordered payment obligations.
The defendant was ordered to pay the first monthly
alimony payment of $18,000 ten days after the issuance
of the court’s memorandum of decision and an amount
equal to 50 percent of the value of the businesses, i.e.,
$452,000, four months thereafter. Moreover, the defen-
dant was ordered to pay $221,677, which the court deter-
mined to be 100 percent of the net equity in the marital
home, three months after paying 50 percent of the value
of the businesses. Additionally, the defendant was
solely responsible for all of the outstanding mortgage
payments, insurance and taxes due and owing on the
marital home since October, 2015, and he was responsi-
ble for all federal and state tax liabilities for the years
1985 through 2016. Finally, he was ordered to pay the
balance of all of the plaintiff’s legal, expert, and profes-
sional fees, i.e., $223,398, within two months of the
court’s judgment or, in the alternative, to secure a writ-
ten, agreed upon installment plan with the creditors of
those fees within that time period.10
Because the defendant’s businesses provided the
stream of income with which the defendant was to
pay the monthly alimony award and because the court
awarded the plaintiff 50 percent of the value of those
businesses, the defendant was left without resources
with which to comply with the court’s orders. He had
no other assets available to satisfy all of the court-
ordered payments. Given the circumstances of this
case, we conclude that the court impermissibly double
counted the value of the defendant’s businesses for
purposes of property division and spousal support
awards.
II
The defendant next claims that the court abused its
discretion in failing to make equitable orders in the
division of the marital estate. Specifically, he argues
that the plaintiff was awarded the entire net marital
estate while the defendant was held responsible for all
of the marital debts. The defendant claims that there
was no finding of an intentional dissipation of marital
assets and that the plaintiff and the family had benefit-
ted from the decisions made throughout the marriage
to defer tax liabilities, to pay for all of the children’s
educational expenses, and to otherwise provide for the
lifestyle to which they had become accustomed. He
further argues that the court’s award of nonmodifiable,
lifetime alimony was not supported by the evidence
at trial.
We agree that the court’s financial awards were ineq-
uitable because, as previously discussed, the court
deprived the defendant of the means with which to
comply with those orders. We further conclude that
the award of nonmodifiable, lifetime alimony was not
supported by the facts as found by the court.11
Again, we are mindful of the court’s broad discretion
in dividing the marital estate in domestic relations mat-
ters. Merk-Gould v. Gould, 184 Conn. App. 512, 516, 195
A.3d 458 (2018). Further, ‘‘there is no presumption in
Connecticut that marital property should be divided
equally prior to applying the statutory criteria.’’ (Inter-
nal quotation marks omitted.) Kaczynski v. Kaczynski,
124 Conn. App. 204, 213, 3 A.3d 1034 (2010). We also
are mindful, however, of ‘‘the long settled principle that
the defendant’s ability to pay is a material consideration
in formulating financial awards.’’ (Internal quotation
marks omitted.) Pellow v. Pellow, 113 Conn. App. 122,
129, 964 A.2d 1252 (2009).
Although the trial court stated that it had considered
all of the statutory criteria and all of the evidence when
it fashioned the financial awards, its final judgment
indicates otherwise. It is true that the court was not
required to establish a plan for the defendant that
detailed the steps he had to take in order to comply with
the court’s financial orders. The court was required,
however, to provide the defendant with the financial
tools necessary to comply with its orders. See Wood v.
Wood, 160 Conn. App. 708, 726, 125 A.3d 1040 (2015).
One of those orders was to pay the plaintiff alimony
in the amount of $18,000 per month, beginning Novem-
ber 13, 2017, and each month thereafter on the thir-
teenth of the month, until the plaintiff’s death, marriage,
cohabitation, or civil union, whichever occured first.
The alimony award was nonmodifiable as to duration
and amount. The effect of this order was to bar the
defendant from seeking a modification even if he
became seriously ill or the businesses failed to thrive
or survive through no fault of his own. The defendant
was fifty-eight years old at the time of trial, and the
court’s order did not take into account his ability to
generate the same amount of income as he grew older
nor did it contemplate his retirement. The court justified
this nonmodifiable, lifetime alimony order on the fol-
lowing basis: ‘‘The purpose of the [c]ourt’s alimony
award is to provide a measure of financial security to
the [p]laintiff who has not worked outside of the marital
home in nearly three decades, has $2,095 in retirement
funds, and has significantly less ability to acquire
income or assets in the future than does the [d]efendant.
The [p]laintiff has limited earning potential. She is [fifty-
five] years old, hearing-impaired, and a cancer survivor.
The [p]laintiff earned a bachelor’s degree in interna-
tional marketing from Simmons College and a master’s
degree in teaching from the University of Bridgeport.
She is no longer licensed to teach.’’
The plaintiff’s own testimony at trial precluded the
conclusion that her physical condition and age rendered
her permanently incapable of earning any income from
any type of employment. Although her teaching certifi-
cate was no longer valid, the court did not consider the
possibility that the plaintiff could seek recertification.12
The plaintiff, although she testified that she had ordered
hearing aids, acknowledged only that she had a little
bit of trouble with her hearing. She did not testify that
her hearing was so deficient that she was incapable of
securing employment. Aside from her hearing issue and
the removal of melanoma on her nose approximately
six years prior to the trial, the plaintiff presented no
other testimony that indicated she had health issues
impacting her employability.
When the defendant cross-examined her at trial
regarding her employment history, the plaintiff testified
that she had been employed as a secretary following
her graduation from college prior to securing a position
as a teacher, that she had obtained a realtor’s license,
and that she had worked at the retail counter at a
printing business. She acknowledged that she had not
attempted to secure employment in any of those fields
in recent years. Further, when she was asked if she
believed that she would not be hired because of her
age, she answered, ‘‘[n]o.’’ The defendant then asked
the plaintiff if she believed she would be employable if
she had some skills training, and she answered, ‘‘[s]ure.’’
When the court inquired how she intended to support
herself, the plaintiff responded: ‘‘I am a little nervous
because I’m fifty-five and, like, what career am I going
to start. I don’t have the skill set to, to go and make a
ton of money. Like, I know I’m just going to get some,
you know, like secretary job or . . . or I’m not going
to make big money or anything. But I’m hoping that I
get something so that I can just move on with my life
and just be my own person.’’
It is evident from the plaintiff’s testimony that she
expected to secure some type of employment, even if
the salary was less than she would have liked it to be.
She did not testify that she was incapable of working
due to her health or lack of education. To the contrary,
she had plans to reenter the job market. Despite this
testimony, the court, in essence, determined that she
would not be able to secure any type of employment at
any time in the future and awarded her nonmodifiable,
lifetime alimony.
A finding of abuse of discretion in making financial
awards in marital dissolution cases is very unusual.
Nevertheless, we are compelled to conclude that this
is one of those rare cases because the court effectively
divested the defendant of any means with which to pay
the court-ordered obligations.13 Further, the facts in
evidence did not support the court’s award of nonmodi-
fiable lifetime alimony. ‘‘The issues involving financial
orders are entirely interwoven. The rendering of a judg-
ment in a complicated dissolution case is a carefully
crafted mosaic, each element of which may be depen-
dent on the other.’’ (Internal quotation marks omitted.)
Krafick v. Krafick, 234 Conn. 783, 806, 663 A.2d 365
(1995). Accordingly, we must remand the matter to the
trial court with direction to hold a new hearing as to
all financial orders.
The judgment is reversed only with respect to the
financial orders and the case is remanded for a new
hearing on all financial issues; the judgment is affirmed
in all other respects.
In this opinion the other judges concurred.
1
Impermissibly double counting an asset for purposes of property and
support awards also is referred to as double dipping in this and other
jurisdictions. See, e.g., O’Brien v. O’Brien, 320 Conn. 81, 120–21, 161 A.3d
1236 (2017).
2
For purposes of this appeal, the defendant does not challenge the facts
as found by the trial court.
3
During the trial, the defendant filed two written requests for a continu-
ance in order to retain counsel to represent him during the remainder of
the dissolution proceedings. The court denied both requests. The defendant
is represented by counsel in this appeal.
4
The defendant explained that he frequently deferred the payment of
taxes by taking loans from the businesses rather than taking the earnings
of the businesses as income. If taken as income, he stated that taxes would
be payable at that time. If taken as a loan, he stated that the taxes would
be deferred until the loan was repaid.
5
Article II, paragraph 2.4 of the plaintiff’s proposed orders provides:
‘‘BUSINESS ENTITIES: The [defendant] is the sole owner of two closely
held business[es] [Connecticut Computer & Consulting, Inc.] and [WriteRe-
sult], LLC. The [defendant] shall retain one hundred percent (100%) of his
ownership interest. The [defendant] shall pay the [plaintiff] sixty percent
of the present value of $904,000.00, which shall not include the value pre-
scribed to the owner’s stated income contained within the business valua-
tion if the court sets a support order as proposed the said business interest
as a [nontaxable] property payment in two equal annual installments begin-
ning July 1, 2017, and July 1, 2018.’’ (Emphasis in original.)
6
The court did not provide its reasoning for this conclusion.
7
The record reveals no discussion of the impact of the defendant’s admit-
ted alcohol issue on his insurability.
8
On January 5, 2018, the defendant moved ex parte for a stay of execution
of the alimony award pending his appeal. In his motion, the defendant
requested the court to stay temporarily his $18,000 per month alimony
obligation and to order him to pay $9000 in monthly alimony instead. On
January 11, 2018, the plaintiff moved to terminate the appellate stay as it
pertained to the defendant’s obligation to pay all outstanding mortgage,
insurance, and taxes due on the marital home, and his obligation to pay all
outstanding federal and state taxes. The court denied the defendant’s ex
parte motion on February 1, 2018, and ordered an evidentiary hearing.
With respect to the plaintiff’s motion, the court entered an order on June
22, 2018, following an evidentiary hearing, requiring the parties to schedule
a status conference. In that order, the court noted: ‘‘The court has reviewed
the rules and the evidence submitted, and has considered the testimony
and the closing argument of counsel. The court’s review of applicable case
law, and review of its November 3, 2017 memorandum of decision . . . has
compelled the court to consider whether an error was made in its trial
orders. Should the court discover an error, an amended memorandum of
decision will be forthcoming.’’ The record reflects that the court did not
file an amended memorandum of decision.
On November 7, 2018, however, the court filed a corrected memorandum
of decision regarding the defendant’s January 5, 2018 motion for a stay of
execution and the plaintiff’s January 11, 2018 motion to terminate the appel-
late stay. The court denied the defendant’s motion and granted the plaintiff’s
motion. The court concluded that it needed ‘‘to preserve the mosaic of its
dissolution orders pending resolution of the appeal.’’ In its consideration
of potential prejudice to the defendant by its decision, the court noted: ‘‘In
the event the defendant-appellant prevails on appeal—which is possible
based on his argument that the court ‘double-dipped,’ by awarding 50 [per-
cent] of his two solely owned companies and $18,000 of alimony [monthly]
out of his remaining 50 [percent] share of the companies . . . he can obtain
effective relief postappeal.’’ (Footnote omitted.)
9
‘‘Earning capacity . . . is not an amount which a person can theoreti-
cally earn, nor is it confined to actual income, but rather it is an amount
which a person can realistically be expected to earn considering such things
as his vocational skills, employability, age and health.’’ (Internal quotation
marks omitted.) Merk-Gould v. Gould, 184 Conn. App. 512, 518, 195 A.3d
458 (2018).
10
The defendant already had paid $35,000 toward the plaintiff’s counsel
and expert fees as per the January 17, 2017 order of the court, Colin, J.,
and additionally had been ordered to pay $54,048 toward the plaintiff’s legal,
expert and professional fees by the court, Tindill, J., on April 25, 2017.
11
We are remanding this case to the trial court for further proceedings
on all financial issues because of impermissible double counting by the court
for property division and support awards. We nevertheless are addressing
the defendant’s remaining claim because the types of issues involved herein
may arise on remand. Antonucci v. Antonucci, 164 Conn. App. 95, 119-20,
138 A.3d 297 (2016); see also Edmond v. Foisey, 111 Conn. App. 760, 773
n.14, 961 A.2d 441 (2008) (reviewing court may resolve claims that are
not necessary for resolution of appeal but may arise during proceedings
on remand).
12
‘‘[R]ehabilitative alimony, or time limited alimony, is alimony that is
awarded primarily for the purpose of allowing the spouse who receives it
to obtain further education, training, or other skills necessary to attain self-
sufficiency.’’ (Internal quotation marks omitted.) Riccio v. Riccio, 183 Conn.
App. 823, 824 n.2, 194 A.3d 337 (2018).
13
We note that the court ordered the defendant to pay all of the plaintiff’s
legal, expert, and professional fees, but failed to make any finding that the
plaintiff lacked the ability to pay her own fees. ‘‘Counsel fees are not to be
awarded merely because the obligor has demonstrated an ability to pay.
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. . . .
In making its determination regarding attorney’s fees, the court is directed
by [General Statutes] § 46b-62 to consider the respective financial abilities
of the parties. . . . Where, because of other orders, both parties are finan-
cially able to pay their own counsel fees they should be permitted to do
so.’’ (Internal quotation marks omitted.) Pena v. Gladstone, 168 Conn. App.
141, 152, 144 A.3d 1085 (2016).
In the present case, it would appear that the plaintiff had ample liquid
funds as a result of the other orders in this case. Nevertheless, ‘‘[t]o award
counsel fees to a spouse who had sufficient liquid assets would be justified,
if the failure to do so would substantially undermine the other financial
awards.’’ (Internal quotation marks omitted.) Id., 152-53. The court failed
to make any such determination when it ordered the defendant to pay the
sum of $223,398 (in addition to $89,048 that he already had been ordered
to pay under court orders), which represented the balance of all of the
plaintiff’s legal, expert, and professional fees.