Steller v. Steller , 181 Conn. App. 581 ( 2018 )

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LINDA STELLER v. RODNEY STELLER
(AC 39014)
Sheldon, Keller and Bright, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from the judgment of the trial court
modifying the defendant’s alimony, life insurance and disability insur-
ance obligations. The parties’ settlement agreement, which had been
incorporated into the dissolution judgment, required the defendant to
pay the plaintiff alimony that was nonmodifiable for four years, except
under certain circumstances. It also required the defendant to maintain
life and disability insurance to secure the plaintiff’s alimony. In addition,
the agreement provided that the defendant, upon reaching the age of
sixty-five years, was entitled to retire and to a ‘‘second look’’ at his
alimony obligation without the need of showing a substantial change
in circumstances, and that if the defendant were to sell his dental prac-
tice, he would pay the plaintiff 20 percent of the net consideration
received at the time of sale and the closing of title. After turning sixty-
five, the defendant filed a motion for modification seeking to modify
his alimony, life insurance and disability insurance obligations because
he wanted to reduce his work schedule and to increase his vacation
time. Following a hearing, the trial court found that the plaintiff had a
gross earning capacity of $20,800 per year and that the defendant had
a gross earning capacity of $200,000 per year, in light of his anticipated
reduced work schedule in 2016. The court also found that the defendant
was expected to sell his dental practice later that year, at which time
the plaintiff would receive $120,000 as a result of that sale. On the basis
of those findings, the court, stating that it had considered the relevant
statutory (§ 46b-82) criteria, granted the defendant’s motion for modifi-
cation and ordered certain reductions to his alimony, life insurance
and disability insurance obligations. On the plaintiff’s appeal to this
court, held:
1. The plaintiff could not prevail on her claim that the trial court improperly
determined that the defendant’s earning capacity was less than his actual
current income, as the plaintiff failed to demonstrate that the court
misinterpreted or misapplied the term ‘‘earning capacity’’ as that term
is used in § 46b-82; the court’s determination was entirely consistent
with the parties’ agreement, which explicitly contemplated a change
in the defendant’s work hours when he reached the age of sixty-five,
confirmed the defendant’s right to retire at that age and provided for a
‘‘second look’’ at alimony, without the need to show a substantial change
in circumstances, even if he did not retire, and, therefore, a finding
of an earning capacity less than the defendant’s current income was
amply justified.
2. The trial court’s finding that the defendant’s gross earning capacity in 2016
was $200,000 per year was clearly erroneous, as it was not supported
by the evidence but, instead, was based on that court’s unsupported
assumptions and the speculative testimony of the defendant, which left
this court with the definite and firm conviction that a mistake had been
committed: the trial court’s finding was based on its clearly erroneous
subordinate finding that the defendant had earned only $260,000 in 2015,
which did not take into account all of the defendant’s sources of income,
but only his income from wages, and the evidence did not support the
court’s conclusion that a reduction in the defendant’s hours from forty
to thirty-three per week, and an increase in his vacation time from six
to ten weeks per year, would cause his gross earning capacity to decrease
from approximately $469,000 in 2014 to $200,000 in 2016; accordingly,
because, pursuant to § 46b-82 (a), the court was required to consider
each party’s amount and sources of income and earning capacity when
determining alimony, the case was remanded for a new hearing on the
defendant’s motion for modification, and because the trial court based
its finding as to the defendant’s net weekly earning capacity on its clearly
erroneous finding as to his gross annual earning capacity, that finding
also was clearly erroneous.
3. Although the trial court’s finding that the sale of the defendant’s dental
practice was expected to occur in 2016 was not supported by the evi-
dence and was clearly erroneous, because this court reversed the judg-
ment of the trial court and remanded the case for a new hearing on the
defendant’s motion for modification and this error was not likely to
recur on remand, it was not necessary for this court to determine if the
trial court’s error was harmful; moreover, this court declined to review
the plaintiff’s claim challenging the trial court’s findings as to her gross
annual earning capacity and net weekly earning capacity in light of this
court’s reversal of the trial court’s judgment and remand of the case
for a new hearing on the motion for modification.
4. Contrary to the plaintiff’s claim, the trial court properly conducted a
‘‘second look’’ de novo review of the defendant’s alimony obligation in
accordance with the parties’ agreement and properly considered the
criteria set forth in § 46b-82 in accordance with relevant case law in
reaching its decision; the plain language of the parties’ agreement permit-
ted the court to take a fresh look at the defendant’s alimony obligation
and the parties’ financial circumstances after he reached the age of
sixty-five, without first having to find a substantial change in circum-
stances, and, in conducting its de novo review, the court specifically
stated that it had considered the statutory criteria pursuant to § 46b-
82, and its memorandum of decision reflected that consideration.
5. The plaintiff could not prevail on her claim that the trial court abused
its discretion by lowering the defendant’s life and disability insurance
obligations, which was based on her claims that insurance orders are
not modifiable and that the defendant failed to prove a substantial
change in circumstances; the relevant insurance provisions in the parties’
agreement clearly provided that they were meant to secure the plaintiff’s
entitlement to alimony and that they were modifiable by the court and
terminable upon the termination of alimony, and, therefore, on remand,
the trial court could consider whether the defendant’s insurance obliga-
tions should be modified in connection with its resolution of the defen-
dant’s motion for modification of his alimony obligation.
Argued January 30—officially released May 1, 2018
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New Haven and tried to the court, Swienton, J.;
judgment dissolving the marriage and granting certain
other relief in accordance with the parties’ settlement
agreement; thereafter, the court, Shluger, J., granted
the defendant’s motion for modification of alimony, life
insurance and disability insurance and issued certain
orders, and the plaintiff appealed to this court; subse-
quently, the court, Shluger, J., issued an articulation of
its decision. Reversed; further proceedings.
Samuel V. Schoonmaker IV, with whom was Wendy
Dunne DiChristina, for the appellant (plaintiff).
Leslie I. Jennings-Lax, for the appellee (defendant).
Opinion
BRIGHT, J. The plaintiff, Linda Steller, appeals from
the judgment of the trial court modifying the alimony,
life insurance, and disability insurance obligations of
the defendant, Rodney Steller. The plaintiff claims that
the trial court: (1) improperly determined that the
defendant’s earning capacity was less than his actual
income and then based its alimony order on that deter-
mination; (2) made clearly erroneous findings, which
were unsupported by the evidence, regarding the defen-
dant’s gross and net earning capacities, her earning
capacity, and the amount she would receive from the
purported sale of the defendant’s dental practice later
that year; (3) failed to apply the proper legal principles,
in accordance with General Statutes § 46b-82 and rele-
vant case law, for resolving a motion for modification
of alimony; and (4) abused its discretion by lowering
the defendant’s disability and life insurance obligations.
We agree with the plaintiff on the second claim and
reverse the judgment of the trial court.
The following facts inform our review. The parties
were married in 1973, and two children were born of
that marriage, both of whom have reached adulthood.
On October 21, 2008, the court rendered a judgment
dissolving the parties’ marriage, which incorporated by
reference the parties’ settlement agreement
(agreement). Article 4.1 of the agreement provides in
relevant part that the defendant will pay to the plaintiff
alimony in the amount of $8333.33 per month, which
is nonmodifiable for the first four years, unless circum-
stances arise that substantially reduce the defendant’s
earnings or earning capacity based upon his health or
some outside factor, not including the voluntary sale
of his dental practice. Article 4.1 also defines ‘‘substan-
tially diminishes his earnings’’ to mean ‘‘that the [defen-
dant’s] earnings are reduced to less than TWO
HUNDRED THIRTY-SEVEN THOUSAND, FIVE HUN-
DRED DOLLARS ($237,500) per year, gross income
from employment.’’
Article 4.3 of the agreement provides that the defen-
dant is entitled to retire at the age of sixty-five, and
that he is entitled to a ‘‘second look’’ at his alimony
obligation upon reaching age sixty-five, without the
need for establishing a substantial change in circum-
stances.1 The agreement requires the defendant to main-
tain life insurance in the amount of $750,000 to secure
the plaintiff’s entitlement to alimony. This amount is
reducible, in the defendant’s discretion, by $100,000
per year, commencing on the fifth anniversary of the
judgment, provided it may not be reduced below
$450,000 until the termination of alimony or pursuant
to court order. The agreement also requires that the
defendant maintain disability insurance in the amount
of $10,000 per month, modifiable as of the fifth year of
the judgment. Additionally, the agreement provides
that, if the defendant sells his interest in his dental
practice, he shall pay to the plaintiff a sum equal to 20
percent of the net consideration received at the time
of sale and the closing of title.
Following the defendant’s sixty-fifth birthday, he filed
a motion, on the basis of the October 21, 2008 judgment
and the parties’ agreement, requesting a modification
or termination of alimony and of life insurance and
disability insurance, contending that he has reached the
age of sixty-five and that, although he ‘‘has not yet
retired, he wishes to reduce his workload and work
schedule but is refraining from doing so [to] the extent
desired until he can determine his alimony obligation,
if any, going forward.’’
On January 29, 2016, the court held a hearing on the
defendant’s motion, and, in a February 3, 2016 memo-
randum of decision, it set forth the following relevant
findings. At the time of the parties’ dissolution, the
plaintiff earned approximately $6000 per year working
as the office manager/receptionist/bookkeeper for the
defendant’s dental practice, and the defendant earned
$378,000 per year. Both parties worked full time. Their
forty-three page agreement, which had been incorpo-
rated into the judgment of dissolution, provided for a
distribution of the parties’ $2.5 million in marital assets.
The plaintiff was awarded substantial assets through
the agreement. She currently ‘‘has mutual funds, [indi-
vidual retirement accounts] and annuities worth $1 mil-
lion. She claims to earn only $59 per week or
approximately $3000 per year on dividends from her
investments . . . . In addition she owns a home which
she values at $450,000 with a $273,000 mortgage or
$176,000 in equity.’’ Since the date of dissolution, the
plaintiff has not sought employment or ascertained the
amount of her forthcoming social security benefits,
despite knowing that the alimony provision in the
agreement is modifiable and that the defendant is enti-
tled to request a second look at alimony upon reaching
the age of sixty-five. The plaintiff works as a nanny for
her grandchildren approximately forty hours per week
for no fee. She has no earned income. The court found
that the plaintiff has an earning capacity of $20,800
per year.2
As to the defendant, the court found that he consis-
tently has worked forty hours per week over the years
and that he earned approximately $528,000 in 2013,
$469,000 in 2014, and $260,000 in 2015. The court further
found that the defendant wants to reduce his workload
to thirty-three hours per week, with increased vacation
time to ten weeks per year. Consequently, the court
found that the defendant has an earning capacity of
$200,000 per year. The court further found that the
defendant was expected to sell his dental practice later
in 2016, for the estimated amount of $600,000, at which
time the plaintiff would receive $120,000 as a result of
that sale.
The court also stated that the plaintiff’s financial affi-
davit provides that her expenses have been reduced to
$106,000 per year,3 but the court found that the plain-
tiff’s expenses were inflated and that she ‘‘could con-
tinue to enjoy her present lifestyle without the necessity
of working with $78,156 per year.’’ Further, the court
found that the plaintiff is ‘‘woefully ignorant as to her
financial circumstances, opportunities, and invest-
ments . . . [as well] as to her Social Security rights
. . . .’’
On the basis of these findings, the court, stating that
it had considered the statutory criteria set forth in § 46b-
82, granted the defendant’s motion for modification and
modified his alimony, life insurance, and disability
insurance obligations. Specifically, the court ordered,
effective June 9, 2016,4 the plaintiff’s sixty-sixth birth-
day, the defendant’s alimony obligation reduced to
$60,000 per year and his life and disability insurance
obligations reduced by 50 percent.5 This appeal
followed.6
We begin by setting forth the 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 on a modification 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, 276 Conn. 491, 496–97, 886 A.2d 817 (2005).
‘‘Furthermore, [t]he trial court’s findings [of fact] are
binding upon this court unless they are clearly errone-
ous in light of the evidence and the pleadings in the
record as a whole. . . . A finding of fact is clearly erro-
neous when there is no evidence in the record to sup-
port 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.’’ (Internal quotation marks
omitted.) Norberg-Hurlburt v. Hurlburt, 162 Conn.
App. 661, 672–73, 133 A.3d 482 (2016).
‘‘In a marriage dissolution action, an agreement of
the parties executed at the time of the dissolution and
incorporated into the judgment is a contract of the
parties. . . . The construction of a contract to ascer-
tain the intent of the parties presents a question of law
when the contract or agreement is unambiguous within
the four corners of the instrument. . . . The scope of
review in such cases is plenary . . . [rather than] the
clearly erroneous standard used to review questions of
fact found by a trial court.’’ (Citation omitted; internal
quotation marks omitted.) Williams v. Williams, supra,
276 Conn. 497. Because the language of the agreement
in the present case, as incorporated into the dissolution
judgment, is clear and unambiguous, our review is
plenary.
‘‘[Our Supreme Court] and [this court] have often
described financial orders appurtenant to dissolution
proceedings as entirely interwoven and as a carefully
crafted mosaic, each element of which may be depen-
dent on the other. . . . In general, the same factors
used by the court to establish an initial award of alimony
are relevant in deciding whether the decree may be
modified. . . . More specifically, these criteria, out-
lined in . . . § 46b-82, require the court to consider the
needs and financial resources of each of the parties
. . . as well as such factors as the causes for the disso-
lution of the marriage and the age, health, station, occu-
pation, employability and amount and sources of
income of the parties.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) Gay v. Gay,
70 Conn. App. 772, 776, 800 A.2d 1231 (2002), aff’d in
part, 266 Conn. 641, 835 A.2d 1 (2003). We now consider
each of the plaintiff’s claims.
I
The plaintiff first claims that the court ‘‘improperly
determined that the defendant’s earning capacity was
lower than his actual current income, and then based
its orders on his earning capacity rather than actual
income.’’ She argues: ‘‘A voluntary retirement does not
result in a loss of earning capacity, just as a proposed
reduction in hours is not the same as a loss of earning
capacity. . . . [A]scribing a loss of earning capacity to
the defendant when he is still working and completely
employable at his current occupation is speculative and
a misapplication of the law. He may or may not reduce
his hours; he may retire or he may not.’’ (Emphasis
in original.)
The defendant argues that the court properly con-
strued the term ‘‘earning capacity.’’ He argues that the
court ‘‘had before it evidence that the defendant was
reducing his work hours and that the reduction in work
hours would lead to a reduction in earnings.’’ Further,
the defendant argues that, because he reached the age
of sixty-five and is entitled to a second look at alimony
on the basis of the dissolution judgment, without a
showing of a substantial change, and because he is
experiencing health issues such as a stiff neck, arthritis,
and increased stress, the court properly found that his
earning capacity was reduced by his age and circum-
stances. We agree with the defendant.
Section 46b-82 (a) provides in relevant part: ‘‘In
determining whether alimony shall be awarded, and
the duration and amount of the award, the court shall
consider the evidence presented by each party and 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,
earning capacity, vocational skills, education, employ-
ability, estate and needs of each of the parties . . . .’’
‘‘It is well established that the trial court may under
appropriate circumstances in a marital dissolution pro-
ceeding base financial awards on the earning capacity
of the parties rather than on actual earned income. . . .
Earning capacity, in this context, is not an amount
which a person can theoretically 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. . . . [I]t also is especially appropriate for
the court to consider whether the defendant has wilfully
restricted his earning capacity to avoid support obliga-
tions . . . . Moreover, [l]ifestyle and personal
expenses may serve as the basis for imputing income
where conventional methods for determining income
are inadequate.’’ (Citations omitted; internal quotation
marks omitted.) Milazzo-Panico v. Panico, 103 Conn.
App. 464, 468, 929 A.2d 351 (2007).
‘‘Although it is true that the court generally increases
the actual earned income of a party when it considers
that party’s earning capacity, there is no statutory provi-
sion or case law that precludes a court from decreasing
that income under appropriate circumstances. . . .
[Our] case law is clear that earning capacity is the
amount that a person can realistically be expected to
earn . . . .’’ (Emphasis in original; internal quotation
marks omitted.) Elia v. Elia, 99 Conn. App. 829, 833,
916 A.2d 845 (2007).
The plaintiff claims that the court misinterpreted the
term ‘‘earning capacity’’ as that term is used in § 46b-
82. She argues that this misinterpretation is demon-
strated by the fact that the defendant’s actual earnings
at the time of the hearing on the defendant’s motion
for modification were greater than the earning capacity
found by the court. We are not persuaded.
In this case, the defendant, at the January 29, 2016
hearing on his motion, testified that, as of January 1,
he was ‘‘taking an additional afternoon off and . . .
scheduling ten weeks [of] vacation per year.’’ He also
testified: ‘‘After practicing dentistry for [forty] years
. . . I’m starting to . . . have a few bodily issues. My
neck has been stiff for six months. . . . I have a little
bit of arthritis in my hand. And the stress of running
any small business now is extremely difficult . . . .’’
This testimony provided a sufficient basis for the court
to find that the defendant’s earning capacity is less than
his current income. We find no error in this conclusion.7
As we explained in Elia, our case law is clear that a
party’s earning capacity is the amount that he or she
realistically can be expected to earn. Elia v. Elia, supra,
99 Conn. App. 833. It is not the amount the party pre-
viously has earned or currently may be earning. See id.;
Milazzo-Panico v. Panico, supra, 103 Conn. App. 468.
After reviewing the court’s memorandum of decision
and our relevant case law, we conclude that the plaintiff
has failed to demonstrate that the court misconstrued
or misapplied the term ‘‘earning capacity’’ or that it
improperly determined that the defendant’s earning
capacity was less than his purported current earnings.
In fact, the court’s conclusion is entirely consistent with
the parties’ agreement, which explicitly contemplates
a change in the defendant’s work hours when he
reached age sixty-five. Article 4.3 of the agreement con-
firms the defendant’s right to retire at the age of sixty-
five and provides for a ‘‘second look’’ at alimony, with-
out the need to show a substantial change in circum-
stances, even if he did not retire. Under these
circumstances, a finding of an earning capacity less
than the defendant’s current income is amply justified.
II
The plaintiff next claims that the court made clearly
erroneous findings, which were unsupported by the
evidence, regarding the defendant’s gross and net earn-
ing capacity, the plaintiff’s earning capacity, and the
amount the plaintiff would receive from the purported
sale of the defendant’s dental practice later in the year.
We consider each of these in turn.
As set forth previously in this opinion: ‘‘[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 mistake has been committed.’’
(Internal quotation marks omitted.) Norberg-Hurlburt
v. Hurlburt, supra, 162 Conn. App. 672–73.
A
The plaintiff claims that the court’s ‘‘finding that the
defendant has a gross annual earning capacity of
$200,000 was not supported by the evidence.’’ The plain-
tiff argues that ‘‘it is indisputable that the evidence of
current actual gross income far exceeded the trial
court’s $200,000 per year finding.’’ To support her argu-
ment, the plaintiff points to the defendant’s financial
affidavit, which discloses a gross weekly income from
employment of $5006, his 2015 paystub, which showed
wages of $260,319 in 2015, and his testimony revealing
that, in addition to these wages in 2015, he made a
voluntary contribution to his 401 (K) in the amount of
$24,000, his business paid his family health insurance
premiums in the amount of $25,012, his limited liability
company received rental income in the amount of
$58,200, he received income in the form of car payments
made by his business for one of his cars, and he had
subchapter S flow through income that was not dis-
closed on the affidavit. She argues that ‘‘[n]o historical
or expert evidence supports the trial court’s finding
that the defendant’s earning capacity is $200,000’’ and
that ‘‘[a]n earning capacity finding that is based on
incompetent, equivocal, or speculative evidence can-
not stand.’’
The defendant responds that the court properly con-
cluded that his gross earning capacity was $200,000.
He argues that ‘‘there was ample evidence, based on
[his] testimony and paystubs regarding his 2015 income
and his reduction in work hours to support the court’s
finding . . . .’’ We agree with the plaintiff.
The court’s conclusion as to the defendant’s earning
capacity was based on a brief exchange between the
court and the defendant. Initially, the court asked the
defendant if he had ‘‘an estimate as to how much income
[he would] be able to earn in [2016], based on [his new]
schedule.’’ The defendant responded that he ‘‘really
[had not] thought about it too much. Whatever it is, it
is.’’ In response to further questions from the court, the
defendant eventually testified that his income for 2016
would be ‘‘around $200,000.’’ The defendant explained
that he had reduced his work schedule to thirty-three
hours per week by taking an additional afternoon off,
so that he was no longer working on Wednesday or
Friday afternoons, and that he also increased his vaca-
tion time from four to six weeks per year to ten or
more weeks per year. The defendant testified that he
expected to earn approximately 50 percent of his previ-
ous income. The court asked the defendant if he meant
that he was going to earn 50 percent less than the
$250,000 in wages from last year, and the defendant
responded: ‘‘[M]aybe not half of that, but I’m thinking
of years past, too.’’ The court then asked the defendant
to explain how that was possible. The defendant
explained that when he hired his associate, he also
had to hire an additional dental assistant, and that the
addition of these two people initially increased his
expenses by approximately $200,000. As his associate
and his new assistant developed their abilities and
increased the number of patients they saw, the defen-
dant saw an increase in his income as a result of these
employees. The defendant stated, however, that, with
the recent decline in the economy and his beginning
to take more time off, business leveled off and then
declined, such that his income went from $469,000 in
2014 to $260,000 in 2015. With his further reduction in
hours and the need to eliminate one of his two dental
hygienists, the defendant stated that he expects to earn
only $200,000 going forward.
The problem with the defendant’s back of the enve-
lope estimate is that it was inconsistent with and con-
trary to other undisputed evidence, including the
defendant’s 2014 tax return, his 2015 statement of
wages, and his October 8, 2015 and January 29, 2016
financial affidavits. A review of those records demon-
strates that the defendant’s income did not decline from
$469,459 in 2014 to $260,000 in 2015. The defendant’s
2014 tax return provides some detail as to the compo-
nents of the defendant’s income that year. Only $250,816
of his income that year was from wages. The defendant
reported additional income of $185,436 from ‘‘[r]ental
real estate, royalties, partnerships, S corporations,
trusts, etc.’’ This amount included rent his limited liabil-
ity company received from his dental practice, as well
as subchapter S flow through income from the dental
practice.8 The defendant’s 2014 income also included
$29,173 in other income.
At the time of the January 29, 2016 hearing on the
defendant’s motion, the defendant had not yet prepared
his 2015 tax return, so it was not available for a fair
comparison of the defendant’s year to year income with
2014. The October 8, 2015 affidavit reflected year to
date wages of $224,016, but it did not contain any of
the additional income shown on the defendant’s 2014
tax return. The defendant did provide the plaintiff with
an updated financial affidavit dated January 29, 2016,
in connection with his motion, but that affidavit also
only set forth his income from wages. The defendant
testified, however, that he did not include any other
sources of income on the affidavit because he believed
that the plaintiff had that information from his 2014 tax
return. Also in evidence was the defendant’s statement
of wages for 2015, which reflected that the defendant’s
2015 wages were $260,319. His January 29, 2016 finan-
cial affidavit reflected weekly wages of $5006, which
is consistent with his statement of wages. Thus, despite
the defendant’s testimony that the economy took a toll
on his business and ‘‘he took a lot more time off’’ in
2015, his wages in 2015 actually increased by almost
$10,000 from 2014.
Furthermore, the defendant’s 2015 ‘‘earnings’’ of
$260,319 do not include other income received by the
defendant, including additional income specifically
related to his dental practice. For example, the defen-
dant’s limited liability company received rental income
from the practice during 2015. The practice also paid
certain personal expenses for the defendant, such as
property tax on one of his personal vehicles and home
cleaning expenses. The defendant’s wage earnings also
do not include any subchapter S flow through income
that the defendant received in 2015. See generally foot-
note 8 of this opinion. According to the defendant’s
tax return, such income from his dental practice alone
amounted to $151,306 in 2014.
Thus, although the defendant’s 2015 tax return was
not available and his updated financial affidavit did not
itemize all of his sources of income, it is clear that his
income in 2015 was greater than his wage earnings of
$260,319. In fact, the only evidence before the court as
to the amount of this other income was the defendant’s
testimony that he did not think he needed to provide
such information on his updated financial affidavit
because the plaintiff had the relevant information from
his 2014 tax return, suggesting that such income in 2015
was not materially different. Consequently, the court’s
factual findings that the defendant earned approxi-
mately $469,000 in 2014 but only $260,000 in 2015 is the
result of an unfair comparison of income because the
$260,000 included only income from wages. It reflects
an apples to oranges comparison of total income in
2014 to wage income in 2015. The court should have
considered all of the defendant’s income in 2015, not
just his wages, which in 2014, made up only a little
more than one half of his total income. Because the
court’s ultimate conclusion that the defendant’s earning
capacity is $200,000 was based, at least in part, on its
clearly erroneous finding that the defendant earned only
$260,000 in 2015, it, too, is clearly erroneous.
Furthermore, the evidence does not support the
court’s conclusion that a reduction in the defendant’s
hours from forty to thirty-three per week, and an
increase in his vacation time from six to ten weeks per
year, would cause his earning capacity to decrease from
$469,000 in 2014 to $200,000 in 2016. When asked by
the court how much income he would be able to earn
based on that reduced schedule, the defendant
responded that he really had not thought about it too
much and ‘‘[w]hatever it is, it is.’’ He then estimated
that the impact would be ‘‘at least 50 percent of my
income.’’ He then identified two factors on which he
based his estimate. First, the defendant testified that
reducing his hours would require the practice to have
one less dental hygienist. He produced no evidence,
however, regarding the income generated by the hygien-
ist. Second, the defendant testified that his business
suffered due to problems in the economy in 2015, but,
again, he produced no records or other evidence quanti-
fying such an impact, and, in fact, the only evidence
provided showed that his wages actually increased in
2015.
Overall, the court’s conclusion that the defendant’s
gross earning capacity is $200,000 is not supported by
the evidence; instead, it is based on unsupported
assumptions and the defendant’s speculation. We are
left with the definite and firm conviction that a mistake
has been committed. See Norberg-Hurlburt v. Hurlb-
urt, supra, 162 Conn. App. 673. Consequently, the
court’s finding as to the amount of the defendant’s gross
earning capacity is clearly erroneous. Because § 46b-
82 (a) requires the court, when determining alimony,
to consider each party’s ‘‘amount and sources of income
[and] earning capacity,’’ the court’s clearly erroneous
finding as to the defendant’s earning capacity and its
failure to consider all of the defendant’s sources of
income requires that the court’s judgment modifying
the defendant’s alimony obligation be reversed and the
case remanded for a new hearing on the defendant’s
motion for modification.
B
The plaintiff next claims that the court’s articulated
finding that the defendant’s net weekly earning capacity
is $2700 is clearly erroneous and unsupported by the
evidence. We agree. Because the court based its net
earnings finding on its clearly erroneous finding that
the defendant has a gross earning capacity of $200,000,
the court’s net earning capacity finding is also clearly
erroneous.
C
The plaintiff also claims that the court’s ‘‘findings
that the plaintiff has a gross annual earning capacity
of $20,800 and a net weekly earning capacity of approxi-
mately $350 per week were not supported by the evi-
dence.’’ (Internal quotation marks omitted.) She argues
that ‘‘[t]here was no evidence that anyone would hire
the plaintiff to work for forty hours each week, that
anyone would pay her $10 per hour, or that she should
work fifty-two weeks per year as a babysitter for a
stranger while the defendant enjoys his ‘golden years.’ ’’
The plaintiff further argues that the court had no evi-
dence to compute a net earning capacity for her. Given
our conclusion that the court’s finding regarding the
defendant’s earning capacity requires us to reverse the
judgment of the trial court and to remand the case for
a new hearing on the defendant’s motion, we need not
address the plaintiff’s argument and decline to do so.
D
The plaintiff claims that the court’s ‘‘finding that [she]
would receive $120,000 upon sale of the dental practice
in 2016 was unsupported and speculative.’’ The plaintiff
argues that the ‘‘court considered all of the . . . § 46b-
82 criteria, and those criteria include ‘estate’ and
‘amount and sources of income.’ . . . The trial court
[therefore erred] by finding that the plaintiff would
receive $120,000 from the defendant in 2016, and by
considering that amount when it entered a modified
alimony order.’’ (Citation omitted.) Although the defen-
dant concedes that the court’s finding that a sale was
expected in 2016 was clearly erroneous, he argues that
the finding was not relevant to the court’s decision,
and, therefore, it was harmless error.
We have reviewed the record in this case and agree
with the plaintiff that there is no evidence to support
the court’s finding that ‘‘it is expected that a sale [of
the defendant’s dental practice] will occur this year’’
and that the plaintiff will get $120,000 from that sale.9 We
agree, therefore, that this finding is clearly erroneous.
Because we are reversing the judgment of the trial court
and remanding the case for a new hearing on the defen-
dant’s motion for modification, and this error is not
likely to recur on remand, it is not necessary for us to
determine if the court’s error was harmful.
III
The plaintiff next claims that ‘‘[t]he trial court misap-
plied Borkowski and Dan when it considered the . . .
§ 46b-82 criteria.’’ See Borkowski v. Borkowski, 228
Conn. 729, 638 A.2d 1060 (1994), and Dan v. Dan, 315
Conn. 1, 105 A.3d 118 (2014). She argues that Dan
requires the court to compare ‘‘conditions at the time
of its modified order to conditions at the time of the last
court order . . . .’’ Furthermore, she argues, although
paragraph 4.3 of the agreement ‘‘allowed for a ‘second
look’ at alimony without a substantial change in circum-
stances . . . [p]aragraph 4.1 . . . provided for
$100,000 per year in alimony for an indefinite duration
of time . . . [and] [t]here was no indication in the
agreement that the plaintiff had an earning capacity,
must obtain paid employment, or must become self-
sufficient by a certain date. . . . There was no demon-
stration that circumstances had changed since the last
court order such that it would be unjust or inequitable
for the plaintiff to maintain her lifestyle after she
attained age sixty-six. . . . The trial court abused its
discretion by basing its alimony order on a reduced
standard of living and an imputed earning capacity.’’
(Citations omitted.)
The defendant argues that, by agreement of the par-
ties, the defendant did not need to establish a substan-
tial change in circumstances when obtaining review of
his alimony order upon reaching the age of sixty-five.
Accordingly, he argues, the court properly considered
the statutory criteria used to determine the initial award
and ‘‘properly considered the needs of the plaintiff and
the earning capacities of both parties when entering
the modified alimony award, and, these being the crite-
ria that had changed since the date of dissolution of
the parties’ marriage, the trial court properly conformed
its [new alimony order] to those changed criteria.’’ We
conclude that the court properly conducted a ‘‘second
look’’ de novo review of alimony in accordance with
the parties’ agreement.
In Hardisty v. Hardisty, 183 Conn. 253, 258–59, 439
A.2d 307 (1981), our Supreme Court articulated a two
part test to be conducted when addressing a motion to
modify alimony. First, the court must find a substantial
change in the financial circumstances of one of the
parties. Id. Second, the court must determine whether
modification is warranted. Id., 259.
In Borkowski v. Borkowski, supra, 228 Conn. 737, our
Supreme Court further articulated that the bifurcated
inquiry of the trial court is not two completely separate
inquiries but that modification can be entertained on a
showing of a ‘‘substantial change in the circumstances
of either party to the original dissolution decree. . . .
Thus, once the trial court finds a substantial change in
circumstances, it can properly consider a motion for
modification of alimony.’’ (Citation omitted.) See also
Dan v. Dan, supra, 315 Conn. 9.
‘‘When a modification of alimony is requested on the
basis of the [parties’] separation agreement, [however]
the court must look to the agreement. Separation
agreements incorporated by reference into dissolution
judgments are to be interpreted consistently with
accepted principles governing contracts.’’ (Internal quo-
tation marks omitted.) Cushman v. Cushman, 93 Conn.
App. 186, 191, 888 A.2d 156 (2006). ‘‘The construction
of a contract to ascertain the intent of the parties pre-
sents a question of law when the contract or agreement
is unambiguous within the four corners of the instru-
ment. . . . The scope of review in such cases is ple-
nary.’’ (Internal quotation marks omitted.) Id.
In the present case, the parties agreed that once the
defendant reached his sixty-fifth birthday, that circum-
stance in and of itself would permit him to obtain a
‘‘second look’’ at the alimony order ‘‘without the need
of showing a substantial change in circumstances.’’
Although the plaintiff appears to argue that the court
could not conduct a de novo review of alimony, and
that it needed to find a substantial change of circum-
stances; see Borkowski v. Borkowski, supra, 228 Conn.
737; we conclude that the plain language of the
agreement permitted the court to take a fresh look at
the parties’ financial circumstances after the defendant
reached his sixty-fifth birthday. As we explained in Tay-
lor v. Taylor, 117 Conn. App. 229, 233, 978 A.2d 538,
cert. denied, 294 Conn. 915, 983 A.2d 852 (2009): ‘‘If
that was not the intent of the parties, the second look
language would have been superfluous because the
agreement provided that alimony could be modified
at any time if a substantial change of circumstances
occurred. The [parties’] agreement, however, specifi-
cally provides that on the happening of . . . [the defen-
dant’s sixty-fifth birthday], alimony may be given a
second look. We conclude, therefore, that this language
permits a de novo review of the plaintiff’s alimony obli-
gation.’’ See also A. Rutkin et al., 8 Connecticut Practice
Series: Family Law and Practice with Forms (3d Ed.
2010) § 33:31, pp. 89–90 (‘‘[w]hen the judgment . . .
calls for a second look at a specified time or upon the
occurrence of a specified event, there is no need for
separate proof of a substantial change in circumstances
and there is a de novo review at the time of the sec-
ond look’’).
When conducting a de novo ‘‘second look,’’ the court
considers ‘‘the parties’ financial circumstances de novo,
as if it were an initial determination of alimony, requir-
ing the application of § 46b–82 criteria.’’ Cushman v.
Cushman, supra, 93 Conn. App. 191. ‘‘Section 46b–82
set[s] forth the criteria that a trial court must consider
when resolving property and alimony disputes in a dis-
solution of marriage action. The court must consider
all of these criteria. . . . It need not, however, make
explicit reference to the statutory criteria that it consid-
ered in making its decision or make express finding[s]
as to each statutory factor. A ritualistic rendition of
each and every statutory element would serve no useful
purpose. . . . [T]he trial court is free to weigh the rele-
vant statutory criteria without having to detail what
importance it has assigned to the various statutory fac-
tors.’’ (Internal quotation marks omitted.) Id.
In the present case, the trial court’s memorandum of
decision reveals that, in conducting the ‘‘second look’’
at alimony, the court took note of the award of alimony
to the plaintiff at the time of the judgment of dissolution,
as well as the fact that she was ‘‘awarded substantial
assets through the separation agreement.’’ The court
specifically stated that it had ‘‘considered the statutory
criteria pursuant to . . . [§] 46b-82 including the length
of the marriage, the causes for the dissolution of the
marriage, the age, health, station, occupation, amount
and sources of income, earning capacity, vocational
skills, education, employability, estate and needs of
each of the parties,’’ and its decision reflects that con-
sideration. Indeed, the court’s focus, as evinced by its
memorandum of decision, was on the parties’ present
circumstances, including their current ages, employ-
ability, earning capacities, amount and sources of
income, and their respective needs. We conclude, there-
fore, that although it made erroneous findings of fact
that require reversal and a new hearing, the court prop-
erly conducted a ‘‘second look’’ at alimony under the
agreement and that it properly considered the criteria
of § 46b-82 in accordance with relevant case law.
IV
The plaintiff’s final claim is that the court abused
its discretion by lowering the defendant’s insurance
obligations without finding a substantial change in cir-
cumstances. The plaintiff also argues, however, that
insurance orders, like property divisions, are nonmodi-
fiable, and the court had no authority to rewrite the
parties’ agreement. The defendant argues that the plain-
tiff is attempting to ‘‘confuse the issues’’ because the
parties’ agreement provides that ‘‘the defendant’s obli-
gations to maintain disability insurance and life insur-
ance were fully modifiable once the four year period
of nonmodifiable alimony had passed.’’ We agree with
the defendant.
As explained previously in this opinion: ‘‘In a mar-
riage dissolution action, an agreement of the parties
executed at the time of the dissolution and incorporated
into the judgment is a contract of the parties. . . . The
construction of a contract to ascertain the intent of the
parties presents a question of law when the contract
or agreement is unambiguous within the four corners
of the instrument. . . . The scope of review in such
cases is plenary . . . [rather than] the clearly errone-
ous standard used to review questions of fact found
by a trial court.’’ (Citation omitted; internal quotation
marks omitted.) Williams v. Williams, supra, 276 Conn.
497. Because the language of the agreement in the pre-
sent case, as incorporated into the dissolution judg-
ment, is clear and unambiguous, our review is plenary.
Paragraph 5.1 of the agreement provides in relevant
part that the defendant ‘‘shall maintain insurance upon
his life . . . in an amount not less [than] SEVEN HUN-
DRED FIFTY THOUSAND DOLLARS ($750,000) and
shall name the [plaintiff] as beneficiary of said policy
in order to secure the [plaintiff’s] alimony. The amount
of life insurance coverage . . . may . . . be reduced
by ONE HUNDRED THOUSAND DOLLARS ($100,000)
per year commencing on the fifth (5th) anniversary of
the final decree for dissolution of marriage. Provided,
however, no less than FOUR HUNDRED FIFTY THOU-
SAND DOLLARS ($450,000) shall be maintained for
the benefit of the [plaintiff] until the termination of
alimony or pursuant to further Court order.’’ (Empha-
sis added.)
Paragraph 5.6 of the agreement provides in relevant
part: ‘‘The [defendant] shall maintain his present disabil-
ity insurance policies at no cost to the [plaintiff], pursu-
ant to the provisions of Article IV10 . . . . The
[defendant] shall, at all times, keep said disability insur-
ance in full force and effect . . . until, when, and if
the [defendant’s] alimony obligation is terminated
pursuant to the provisions of Article IV . . . . Pro-
vided, however, commencing on the fourth (4th) anni-
versary of the final decree for dissolution of marriage,
the [defendant’s] obligation to maintain his current
level of disability insurance shall be modifiable in the
same manner as alimony under Connecticut law.’’
(Emphasis added; footnote added.)
In its memorandum of decision, the court ordered
that the defendant could reduce both his life insurance
and his disability insurance by 50 percent. The plaintiff
argues that the court abused its discretion because
insurance orders are not modifiable and because the
defendant did not prove a substantial change in circum-
stances. We disagree.
As to the plaintiff’s argument that insurance is not
modifiable, on the basis of the clear language of the
agreement, we reject this contention outright. See also
General Statutes § 46b-86 (expressly authorizing modi-
fication of life insurance orders in marital dissolution
decrees). Clearly, both insurance provisions in the
agreement specifically provide that the amount of insur-
ance is modifiable. Indeed, both provisions also antici-
pate the prospect that insurance could be terminated
upon the termination of alimony. Accordingly, we need
not address this argument further.
The plaintiff also argues that the court abused its
discretion by modifying the amount of insurance the
defendant was required to maintain without finding a
substantial change in circumstances. She argues that
despite the fact that paragraph 4.3 of the agreement
provided that the defendant did not need to show a
substantial change in circumstances upon reaching the
age of sixty-five for a modification of alimony, the same
was not provided in the paragraphs dealing with his
insurance obligations. She argues, therefore, that the
court needed to find a substantial change in circum-
stances. We are not persuaded.
As our law clearly provides: ‘‘[A] contract must be
viewed in its entirety, with each provision read in light
of the other provisions . . . and every provision must
be given effect if it is possible to do so.’’ (Internal quota-
tion marks omitted.) Nation-Bailey v. Bailey, 316 Conn.
182, 192, 112 A.3d 144 (2015). Both insurance provisions
in the agreement provide that they are meant to secure
the plaintiff’s entitlement to alimony. They also provide
that they are modifiable by the court and terminable
upon the termination of alimony. Thus, on remand, the
court may consider whether the defendant’s insurance
obligations should be modified in connection with its
resolution of the defendant’s motion for modification of
his alimony obligation. To hold otherwise would require
that we overlook and disregard the stated purpose of
the life and disability insurance provisions of the
agreement.
The judgment is reversed and the case is remanded
for a new hearing on the defendant’s motion for modifi-
cation.
In this opinion the other judges concurred.
1
Specifically, article 4.3 of the agreement provides: ‘‘It is acknowledged
that the husband has the right to retire upon reaching the age sixty-five (65)
years and he may petition the Court to take a ‘second look’ for a hearing
to determine the amount of alimony which he shall pay to the wife. The
retirement of the husband at age sixty-five (65) shall be considered a substan-
tial change in circumstances, but in any event, even if the husband does
not retire at age sixty-five (65), he shall have a right to seek a modification
of alimony at age sixty-five (65) without the need of showing a substantial
change in circumstances. This provision is not intended to limit the modifi-
ability of alimony before or after that date, pursuant to Connecticut statutory
and case law, except as provide under Article 4.1 above.’’
2
In another part of its decision, the court found that the plaintiff’s earning
capacity was $20,000. In its articulation, however, it restated her gross
earning capacity as $20,800.
3
At the time of the dissolution in 2008, the plaintiff’s financial affidavit
provided that her living expenses were $187,497.96 per year.
4
Although the defendant had requested that the modification be made
retroactive to the date of the filing of the motion, the court denied that
request, explaining that the defendant had enjoyed his higher income during
that period and that the plaintiff presumably had spent that money.
5
The court explained that ‘‘[t]he life insurance and disability insurance
obligation agreed to by the parties at the time of the dissolution can and
should be reduced at this time as the term to be protected is shorter and
the amount is lower than at the time of the divorce.’’
6
In an articulation, the court explained that the plaintiff’s net earning
capacity is approximately $350 per week, and the defendant’s net earning
capacity is approximately $2700 per week.
7
Our conclusion that the court reasonably could conclude, based on the
evidence presented, including the agreement that anticipated a reduction
in the defendant’s work schedule, that the defendant had an earning capacity
less than his current income does not change what must be shown to
determine the defendant’s specific earning capacity. The court’s conclusion
as to earning capacity must be based on evidence of what reasonably can
be expected. The court cannot rely on speculation as to a defendant’s hopes
or desires as to a reduced work schedule. In order to conclude that the
defendant’s earning capacity is less than his actual income, the court must
have evidence that the defendant actually has taken steps or has demon-
strated that he will be taking steps to reduce his income, and there must
be evidence as to the effect such steps will have on the defendant’s earn-
ing capacity.
8
We are mindful that our Supreme Court in Tuckman v. Tuckman, 308
Conn. 194, 209–10, 61 A.3d 449 (2013), a case involving a child support
obligation, explained that although a tax return may demonstrate that ‘‘a
substantial portion of [a party’s] taxable income . . . was income from
[that party’s] share of the S corporation . . . [because an S corporation’s]
capital gains and losses, for federal income tax purposes, pass through [it]
to the individual shareholders . . . any federal income tax liability on capi-
tal gains is the responsibility of the individual shareholder. . . . All of the
earnings of such a company must be reported as individual income by its
[shareholders].’’ (Citation omitted; internal quotation marks omitted.) That
does not signify, however, what portion of the money ‘‘was actually available
to the [party] and what portion was merely [pass] through earnings of the
S corporation.’’ (Internal quotation marks omitted.) Id., 210. Here, the court
and the defendant attributed the entire S corporation income to him for a
total gross income of $469,459.
9
Schedule A of the agreement provides in relevant part that the plaintiff
will receive 20 percent of the net consideration received for the sale of
the practice.
10
Article IV of the agreement provides in relevant part that disability
insurance was to be maintained to ‘‘secure the alimony payment’’ to the
plaintiff.