Hornung v. Hornung

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MARJORIE HORNUNG v. ROBERT HORNUNG
(SC 19361)
Rogers, C. J., and Palmer, Zarella, Eveleigh, Espinosa, Robinson and
Vertefeuille, Js.
Argued November 3, 2015—officially released September 20, 2016
Kenneth J. Bartschi, with whom were Wesley W.
Horton, and, on the brief, Richard L. Albrecht and Bar-
bara M. Schellenberg, for the appellant-appellee
(defendant).
Campbell D. Barrett, with whom, on the brief, were
Jon T. Kukucka, Brandon B. Fontaine, Wayne Effron
and Johanna S. Katz, for the appellee-appellant
(plaintiff).
Opinion
ROBINSON, J. The defendant, Robert Hornung,
appeals1 from the judgment of the trial court setting
forth financial orders incident to the dissolution of his
marriage to the plaintiff, Marjorie Hornung. In those
orders, the trial court directed the defendant to pay to
the plaintiff, inter alia, lump sum alimony in the amount
of $7.5 million and attorney’s fees in the amount of
$140,000. On appeal, the defendant claims that the trial
court: (1) improperly rendered a lump sum alimony
award that constitutes a property distribution in viola-
tion of the parties’ prenuptial agreement (agreement);
and (2) abused its discretion in awarding attorney’s fees
to the plaintiff in light of its other awards to her. We
disagree with the defendant’s claim that the lump sum
alimony award is actually an improper property distri-
bution, but agree that the trial court abused its discre-
tion in awarding attorney’s fees to the plaintiff.
Accordingly, we affirm in part and reverse in part the
judgment of the trial court.2
The record reveals the following facts and procedural
history. The plaintiff and the defendant were married
in Greenwich in 1997 and have four minor children.
The defendant earns $970,000 per year from employ-
ment and investments, and received $37 million from
the sale of a software program in 2000. The plaintiff, a
full-time homemaker and the primary caretaker of the
children, presently earns no income. She suffers from
a thyroid condition and is borderline diabetic.
Shortly before their marriage, the parties entered into
the agreement. The agreement provided for sole owner-
ship of separate property acquired before the marriage,
which would not be subject to equitable distribution in
the event of dissolution.3 Marital assets were to be
divided in accordance with a formula based upon the
length of the marriage and the number of children. The
agreement stated that the issues of alimony and child
support would be addressed by the courts.4
In 2011, the plaintiff brought the present action seek-
ing a legal separation, and later amended her complaint
to seek a dissolution of the marriage. After trial, the
trial court ordered the defendant to pay, inter alia,
$40,000 per month in periodic unallocated alimony and
child support, and $7.5 million in lump sum alimony.5
With respect to the lump sum alimony award, the court
noted that ‘‘under all the circumstances [the] award
. . . is appropriate to provide for continuing support of
the [plaintiff]’’ in light of the following: ‘‘[the plaintiff’s]
health issues; her lack of recent employment; her pri-
mary child care responsibilities for four children, which
limits her ability to enter the workforce on a full-time
basis; and her limited opportunity to acquire assets in
the future.’’6 In making the award, the court stated that
it considered the factors in the alimony statute, General
Statutes § 46b-82,7 as well as ‘‘other factors which may
be appropriate for a just and equitable resolution.’’
(Internal quotation marks omitted.) In discussing ali-
mony generally, the court noted that ‘‘both parties . . .
made significant contributions to the acquisition, main-
tenance, and preservation of the family assets, including
the real estate.’’ The court also ordered the defendant
to contribute $100,000 toward the plaintiff’s attorney’s
fees pursuant to General Statutes § 46b-62,8 reasoning
that ‘‘to require the [plaintiff], who has minimal earning
capacity and the responsibility for the primary care of
four minor children age nine through fifteen, three of
whom have learning issues, to pay these fees from her
portion of the financial award . . . would undermine
the purposes of [the] same’’ and that ‘‘it would be fair
and equitable for the [defendant] to pay [those fees].’’
The defendant then filed this appeal. See footnote 1 of
this opinion.
The plaintiff subsequently moved for an award of
appellate attorney’s fees. After a hearing, the trial court
ordered the defendant to contribute an additional
$40,000 toward the plaintiff’s appellate attorney’s fees.
The court stated that the plaintiff needed ‘‘reasonable
access to the court system [to] defend an appeal that
[the defendant] made’’ and that she ‘‘does not have
ample liquid assets’’ or ‘‘resources that are readily avail-
able’’ to pay the fees because several of the trial court’s
orders were stayed pending the defendant’s appeal.
Thereafter, the defendant filed an amended appeal chal-
lenging the trial court’s award of appellate attorney’s
fees. Additional facts and procedural history will be set
forth as necessary.
On appeal, the defendant contends that: (1) the lump
sum alimony award constitutes a functional property
distribution in violation of the agreement; and (2) the
trial court abused its discretion in ordering him to pay
the plaintiff’s attorney’s fees. We address each claim
in turn.
I
The defendant first claims that the lump sum alimony
award is actually a property distribution in violation of
the agreement because: (1) in making the award, the
trial court considered two factors—the plaintiff’s
opportunity to acquire assets in the future and her con-
tribution to the marital estate—that appear in the prop-
erty distribution statute, General Statutes § 46b-81,9 but
not the alimony statute, § 46b-82; and (2) the lump sum
award is more than necessary for the plaintiff’s contin-
ued support, thus indicating that it is functionally a
property distribution.10 In response, the plaintiff con-
tends that the trial court properly awarded lump sum
alimony, rather than a disguised property distribution,
because: (1) the trial court unambiguously character-
ized the lump sum award as alimony, and retained dis-
cretion to consider equitable factors beyond § 46b-82,
including those listed in § 46b-81, in making the award;
and (2) the award was appropriate in light of the stan-
dard of living of the marriage, the substantial assets
awarded to the defendant under the agreement, and
the equitable factors considered by the trial court. We
agree with the plaintiff.
The question of whether the trial court properly
applied the law when fashioning the lump sum alimony
award is a question of law subject to plenary review.
See Crews v. Crews, 295 Conn. 153, 162, 989 A.2d 1060
(2010). Although financial orders in family matters are
generally reviewed for an abuse of discretion; Ross v.
Ross, 172 Conn. 269, 275, 374 A.2d 185 (1977); this court
applies a less deferential standard ‘‘when the decision
of the trial court is based not on an exercise of discre-
tion but on a purported principle of law.’’ (Internal
quotation marks omitted.) Loughlin v. Loughlin, 280
Conn. 632, 641, 910 A.2d 963 (2006). ‘‘Notwithstanding
the great deference accorded the trial court in dissolu-
tion 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.’’ Borkowski
v. Borkowski, 228 Conn. 729, 740, 638 A.2d 1060 (1994).
We conclude that the trial court properly awarded
lump sum alimony, and not a property distribution in
violation of the agreement, for two reasons: (1) the
trial court unambiguously characterized the lump sum
award as alimony and, as such, its incidental consider-
ation of two factors in § 46b-81, the property distribu-
tion statute, does not demonstrate that the award is a
functional property distribution; and (2) the fact that the
combined alimony and child support awards apparently
exceed the plaintiff’s claimed expenses does not dem-
onstrate that the award is actually a property distribu-
tion, in light of the standard of living of the marriage
and the equitable and statutory factors considered by
the trial court.11 See footnote 10 of this opinion. We
discuss each rationale in turn.
A
First, the trial court consistently described the lump
sum award as alimony in its decision, articulation, and
comments. From the beginning of its decision, the trial
court distinguished between the property distribution
allowed under the prenuptial agreement and its broad
authority to award alimony.12 Thereafter, the trial court
explained that, ‘‘under all the circumstances,’’ the pur-
pose of the lump sum award was to provide ‘‘continuing
support’’ to the plaintiff—the quintessential purpose of
alimony. See, e.g., Dombrowski v. Noyes-Dombrowski,
273 Conn. 127, 132, 869 A.2d 164 (2005). The purpose
of a property distribution, by contrast, is ‘‘to unscramble
existing marital property in order to give each spouse
his or her equitable share at the time of dissolution.’’
(Internal quotation marks omitted.) Id., 133; see also
Blake v. Blake, 211 Conn. 485, 497, 560 A.2d 396 (1989)
(‘‘[t]he difference between an assignment of a specific
portion of an estate and alimony is in their purposes’’
[internal quotation marks omitted]). The trial court
made no reference or allusion to this equitable purpose
in making the lump sum alimony award, and instead
divided the property in accordance with the agreement.
The trial court also specifically cited § 46b-82, the ali-
mony statute, and two judicial opinions in which lump
sum alimony was properly awarded when making the
lump sum alimony award.13 See Maguire v. Maguire,
222 Conn. 32, 47, 608 A.2d 79 (1992) (‘‘[a]ny ambiguity
as to the criteria upon which the court relied for alimony
was put to rest [when] the trial court indicated that it
had relied upon the criteria in § 46b-82 for its award
of alimony’’).
In light of this language, the trial court’s mere mention
of two factors in the property distribution statute,
namely, the plaintiff’s opportunity to acquire assets in
the future and her contribution to the marital estate, did
not render the lump sum award an improper property
distribution.14 See id., 46–47 (trial court did not improp-
erly predicate alimony award on ‘‘impermissible statu-
tory criterion [by] . . . refer[ring] to § 46b-81’’ in
decision); Blake v. Blake, supra, 211 Conn. 495–99 (trial
court’s characterization of lump sum payment as ali-
mony in oral decision did not render it alimony, as
opposed to property distribution, when court otherwise
consistently characterized award as property distribu-
tion). In awarding lump sum alimony, the trial court
pointed to several considerations, including ‘‘the [plain-
tiff’s] health issues; her lack of recent employment; her
primary child care responsibilities for four children,
which limits her ability to enter the workforce on a
full-time basis; and her limited opportunity to acquire
assets in the future.’’ (Emphasis added.) The court also
noted that throughout the marriage, ‘‘both parties . . .
made significant contributions to the acquisition,
maintenance, and preservation of the family assets,
including the real estate.’’ (Emphasis added.)
We have repeatedly acknowledged that the statutory
factors for awarding alimony and distributing property
are ‘‘virtually identical.’’15 Sunbury v. Sunbury, 210
Conn. 170, 173–74, 553 A.2d 612 (1989); see also Greco
v. Greco, 275 Conn. 348, 360, 880 A.2d 872 (2005)
(‘‘essentially identical’’); Dombrowski v. Noyes-Dom-
browski, supra, 273 Conn. 137 (‘‘ ‘almost identical’ ’’).
We have, further, declined to fault trial courts for con-
sidering the two factors that appear in the property
distribution statute, but not the alimony statute, when
awarding alimony, because dissolution actions are
‘‘essentially equitable in . . . nature’’; Robinson v. Rob-
inson, 187 Conn. 70, 72, 444 A.2d 234 (1982); and the
resulting financial orders are ‘‘entirely interwoven.’’16
(Internal quotation marks omitted.) Greco v. Greco,
supra, 354; see, e.g., Blake v. Blake, 207 Conn. 217, 232,
541 A.2d 1201 (1988) (‘‘[i]n determining the assignment
of marital property under § 46b-81 or alimony under
§ 46b-82, a trial court must weigh . . . the opportunity
of each for future acquisition of capital assets and
income’’ [emphasis added]); Koizim v. Koizim, 181
Conn. 492, 493, 498, 435 A.2d 1030 (1980) (alimony
award not abuse of discretion in part because of wife’s
‘‘very significant’’ contributions, ‘‘both financial and
otherwise,’’ to marriage; ‘‘even if we . . . look solely
at the other statutory criteria, especially . . . the con-
tributions that each spouse made to the marriage . . .
the court’s [alimony] orders are neither mind boggling,
outrageously excessive nor unreasonable’’ [emphasis
added]); Weinstein v. Weinstein, 18 Conn. App. 622,
634, 638, 561 A.2d 443 (1989) (after ‘‘properly assessing
the parties’ relative earning capacities, asset holdings,
and ability to acquire assets, in accordance with . . .
§ 46b-82,’’ trial court did not abuse discretion in not
awarding alimony to wife because of her ‘‘capacity to
acquire assets in the future’’ [emphasis added; internal
quotation marks omitted]). In any event, the trial court
had discretion to consider these equitable factors when
awarding alimony, and their inclusion in the property
distribution statute did not render them off-limits to
the trial court’s analysis.17 See Borkowski v. Borkowski,
supra, 228 Conn. 743–44 (courts may consider ‘‘any
other factors which may be appropriate for a just and
equitable resolution of the marital dispute’’ when
awarding alimony [internal quotation marks omitted]);
Demartino v. Demartino, 79 Conn. App. 488, 500, 830
A.2d 394 (2003) (‘‘[b]ecause § 46b-82 does not contain
an exhaustive list of factors, the court properly may
consider other equitable factors when determining an
alimony award’’ [internal quotation marks omitted]);
accord Smith v. Smith, 249 Conn. 265, 283–84, 752 A.2d
1023 (1999) (court could equitably consider husband’s
travel expenses in seeing children as factor when
awarding alimony even though factor is ‘‘listed explic-
itly’’ in child support regulations).18
Although the defendant points to the fact that the
trial court considered two factors that appear in the
property distribution statute but not the alimony stat-
ute, he does not mention that the trial court also consid-
ered one factor that appears in the alimony statute, but
not the property distribution statute. In awarding lump
sum alimony, the trial court emphasized the plaintiff’s
‘‘primary child care responsibilities for four children,
which limits her ability to enter the workforce on a full-
time basis . . . .’’ The alimony statute lists as a factor,
‘‘the desirability and feasibility of [the] parent’s securing
employment’’ in the case of parents to whom the cus-
tody of minor children is awarded. General Statutes
§ 46b-82 (a). The property distribution statute contains
no such factor.19 See General Statutes § 46b-81 (c).
The trial court’s articulation also supports the charac-
terization of the award as alimony and not a property
distribution. The plaintiff sought an articulation as to
whether the trial court ‘‘considered, applied, or
intended to apply’’ a factor in § 46b-81 when it awarded
lump sum alimony. The trial court responded: ‘‘In mak-
ing an equitable division of marital property or an award
of alimony, whether periodic or lump sum, the court
must, as it did, consider the statutory criteria set forth
in . . . §§ 46b-81 and 46b-82 respectively.’’ (Emphasis
altered.) The word ‘‘respectively’’ indicates the court’s
understanding that each statute applies to each type of
financial order. This language therefore confirms the
trial court’s application of § 46b-82, not § 46b-81, when
awarding lump sum alimony. The trial court also
acknowledged its equitable power to consider ‘‘any
appropriate additional factors, statutory or otherwise’’
in its articulation, noting that those powers gave ‘‘the
court the authority to consider all the circumstances
that may be appropriate for a just and equitable resolu-
tion of the marital dispute.’’ (Emphasis omitted; internal
quotation marks omitted.)
The trial court further differentiated between the
lump sum alimony award and its property distribution
orders at a hearing on the plaintiff’s motion to terminate
an appellate stay on several of its orders. The court
stated, ‘‘I crafted this order . . . [a]nd I specifically
separated what I consider property settlement from .
. . lump sum alimony.’’ (Emphasis added.) The court
explained that it awarded both periodic and lump sum
alimony in consideration of how the defendant’s income
‘‘comes in’’ and ‘‘flow[s]’’ from his various income
streams. The court noted that ‘‘there’s a method to the
. . . madness in terms of how the decree is crafted.’’
Thus, the court evidently did not intend to effectuate
a functional property distribution by awarding lump
sum alimony, but intended to account for the fact that
the defendant received some components of his income
only a few times per year.
B
Second, we disagree with the defendant’s contention
that, because the combined alimony and child support
payments exceed the plaintiff’s claimed expenses, the
lump sum alimony award is a functional property distri-
bution, in light of the standard of living of the marriage
and the equitable factors considered by the trial court.20
See footnote 10 of this opinion. The plaintiff attested
to having $65,444 per month in expenses at the time of
trial.21 The $40,000 per month periodic alimony and
child support payments would not cover this amount.
The lump sum alimony payments, however, when com-
bined with these payments, equate to $102,500 per
month in total alimony and child support. Although
this figure exceeds the plaintiff’s claimed expenses, we
cannot conclude that this fact alone means that the
lump sum award constitutes a functional property dis-
tribution. See Koizim v. Koizim, supra, 181 Conn.
493–94 (upholding total alimony award of $9000 per
month, when wife claimed approximately $7083 per
month in expenses and marital expenses were $7500
per month).
First, it is not clear from the record to what extent
the trial court considered the plaintiff’s expenses, as
stated in her financial affidavit, to represent the stan-
dard of living of the marriage.22 See, e.g., Mavilla v.
Mavilla, Docket No. 2011-095, 2011 WL 4975100, *5 (Vt.
August 31, 2011) (wife’s financial affidavit showed that
her ‘‘standard of living was far below that established
during the marriage and that which husband currently
enjoyed’’); see also Stamper v. Stamper, Docket No.
A10-109, 2010 WL 3119503, *4 (Minn. App. August 10,
2010) (wife’s claimed expenses ‘‘reflect[ed] a signifi-
cantly reduced standard of living compared to the stan-
dard enjoyed during the marriage’’); cf. Thomas v.
Thomas, Docket No. A13-0905, 2014 WL 802035, *3
(Minn. App. March 3, 2014) (wife’s claimed expenses
‘‘accurately reflect[ed] the parties’ standard of living
during the marriage’’). Although the primary purpose
of alimony is to provide for continuing support of a
disadvantaged spouse, the spouse is entitled to maintain
the standard of living of the marriage after the dissolu-
tion, as closely as possible. See, e.g., Brody v. Brody,
315 Conn. 300, 313, 105 A.3d 887 (2015) (‘‘[t]he generally
accepted purpose of . . . alimony is to enable a spouse
who is disadvantaged through divorce to enjoy a stan-
dard of living commensurate with the standard of living
during marriage’’ [internal quotation marks omitted]).
When the disadvantaged spouse’s efforts ‘‘increased the
other’s earning capacity at the expense of [his or] her
own,’’ he or she is entitled to ‘‘sufficient alimony to
ensure the continued enjoyment of [that] standard of
living . . . .’’ (Internal quotation marks omitted.) Dan
v. Dan, 315 Conn. 1, 11, 105 A.3d 118 (2014). Moreover,
the parties’ children are entitled to continue ‘‘the life-
style to which [they were] accustomed and the standard
of living [they] enjoyed before the divorce . . . .’’
(Internal quotation marks omitted.) Maturo v. Maturo,
296 Conn. 80, 108, 995 A.2d 1 (2010).
The parties apparently maintained a high standard
of living during the marriage. The defendant valued the
marital home at $6.75 million23 and the parties’ vacation
home at $1.2 million. Although the defendant’s income
fluctuated during the marriage, he earned more than
$1 million per year in several years of the marriage.24
The trial court acknowledged that his employment has
‘‘proven to be very lucrative.’’ In 2006, for example,
he earned $1,687,677, which equates to approximately
$140,640 per month. The following year, he earned
$1,253,766, or approximately $104,480 per month. He
also received an additional $37 million from the sale of
a software program three years into the marriage. At the
time of trial, the defendant’s bank account contained
$84,238. Because the plaintiff’s efforts as a homemaker
and the primary caretaker of the children increased the
defendant’s earning capacity at the expense of her own,
she is entitled to maintain this standard of living after
the divorce, to the extent possible. See, e.g., Dan v.
Dan, supra, 315 Conn. 11; Brody v. Brody, 136 Conn.
App. 773, 790, 51 A.3d 1121 (2012) (‘‘the parties had
enjoyed a comfortable lifestyle during their marriage
. . . for the benefit of the [wife] and the parties’ chil-
dren, any award of alimony should reflect this quality
of life’’), rev’d in part on other grounds, 315 Conn. 300,
105 A.3d 887 (2015).
In addition to the marital standard of living, the trial
court must also consider the factors in § 46b-82 when
awarding alimony. See Golden v. Mandel, 110 Conn.
App. 376, 385, 955 A.2d 115 (2008) (‘‘[t]he standard of
living . . . was only one factor that the court consid-
ered in making its financial award’’). Such factors
include: ‘‘the length of the marriage, the causes for the
. . . dissolution of the marriage . . . [and] the age,
health, station, occupation, amount and sources of
income, earning capacity, vocational skills, education,
employability, estate and needs of each of the parties
. . . .’’ General Statutes § 46b-82 (a). The trial court
must also consider any property distributions made
pursuant to § 46b-81 and, ‘‘in the case of a parent to
whom the custody of minor children has been awarded,
the desirability and feasibility of such parent’s securing
employment.’’ General Statutes § 46b-82 (a).
Accordingly, the plaintiff’s expenses do not represent
the only factor that the trial court must consider when
awarding alimony. On the contrary, § 46b-82 lists thir-
teen other factors that the court must consider when
awarding alimony, in addition to the ‘‘needs’’ of the
recipient spouse. The court must not only examine the
spouse’s financial situation at the time of trial, but look
ahead to his or her ability to generate income in the
future. See General Statutes § 46b-82 (instructing court
to consider spouse’s ‘‘age, health, station, occupation
. . . earning capacity, vocational skills, education,
[and] employability’’). Several of the factors relate in
no way to the spouse’s expenses, such as the length of
the marriage and the cause of the breakdown of the
marriage. The trial court must also look to the payor
spouse’s financial situation, in addition to that of the
recipient spouse. Specifically, the trial court must con-
sider the payor’s age, health, station, occupation,
amount and sources of income, earning capacity, voca-
tional skills, education, and employability. These fac-
tors have nothing to do with the recipient spouse’s
claimed expenses. Thus, it cannot be said that the trial
court was constrained by the plaintiff’s claimed
expenses in awarding alimony. The trial court instead
had ‘‘wide discretion’’ to ensure that the plaintiff and
the parties’ children continued to enjoy the standard
of living of the marriage for years to come. (Internal
quotation marks omitted.) Brody v. Brody, supra, 315
Conn. 313.
The trial court’s resolution of these factors in the
present case further militates against characterizing the
lump sum alimony award as a property distribution.25
The parties were married for seventeen years and have
four minor children. The children, now ages eleven,
fourteen, fifteen, and seventeen, three of whom have
learning issues, primarily reside with the plaintiff. The
defendant was fifty years old at the time of trial and in
‘‘general good health.’’ Although he described a ‘‘painful
bout of neuropathy’’ at one point during the marriage,
the trial court found that he ‘‘is not prevented from
working full-time.’’ The defendant has a business degree
from Syracuse University, and his primary employment
is with his family’s window company and its subsidiar-
ies. At the time of trial, the defendant earned nearly $1
million per year from his employment and investments.
By contrast, the plaintiff was forty-five years old at the
time of trial, suffers from a thyroid condition, and is
borderline diabetic. She has a college degree from
Emerson College, but did not work for the ‘‘greater
portion’’ of the parties’ seventeen year marriage. When
she did work, she earned approximately $30,000 per
year, with a maximum of $65,000 to $70,000 per year.
She earned no income at the time of trial and claimed
$65,444 per month in expenses. Significantly, the trial
court also found that the defendant caused the break-
down of the marriage,26 characterizing him as a ‘‘control-
ling, emotional bully’’ and describing his ‘‘bizarre’’ and
‘‘demeaning’’ behavior.27
Moreover, the agreement left the defendant with sig-
nificant assets as compared to the plaintiff. See General
Statutes § 46b-82 (trial court ‘‘shall consider the . . .
estate . . . of each of the parties’’); Golden v. Mandel,
supra, 110 Conn. App. 386 (‘‘[i]t is well established that
the parties’ estate is defined as the aggregate of the
property and liabilities of each’’ [emphasis added]);
see also Schmidt v. Schmidt, 180 Conn. 184, 192, 429
A.2d 470 (1980) (‘‘the ‘estate’ of the parties . . . com-
prehends the aggregate of the property and liabilities
of each’’). The trial court ordered the defendant to pay
to the plaintiff: $2,082,000, the amount owed her under
the prenuptial agreement; $40,000 per month in periodic
unallocated alimony and child support for fifteen years;
and $7.5 million in lump sum alimony, payable in bian-
nual installments of $375,000. The defendant, however,
kept the marital home and the parties’ vacation home,
in addition to all of his commercial real estate, business
ownerships, securities, bonds, bank accounts, and
retirement accounts. He received, in total, more than
$25 million in assets.28 By comparison, the plaintiff kept
the home she purchased during this dissolution litiga-
tion, as well as her bank accounts, retirement accounts,
and personal property, which totaled approximately
$4.5 million.29
The trial court also did not specify how much of the
periodic alimony and child support award should go
toward the children’s maintenance, as opposed to the
plaintiff’s support. The trial court, at least, found it
appropriate to deviate from the presumptive minimum
child support amount under the guidelines based on the
defendant’s income. Moreover, the parties’ four minor
children are entitled to maintain the standard of living
of the marriage, to the extent possible. See Maturo
v. Maturo, supra, 296 Conn. 108; see also id., 168–69
(Vertefeuille, J., dissenting in part) (noting ‘‘new wave’’
of cases recognizing ‘‘the significance of the standard of
living of children of affluent parents’’ [internal quotation
marks omitted]). The $40,000 per month award, which
would not cover the plaintiff’s $65,444 in expenses, was
also limited to fifteen years.
In light of these principles, we disagree with the
defendant’s contention that, because the combined ali-
mony and child support payments exceed the plaintiff’s
claimed expenses, the lump sum alimony award is func-
tionally a property distribution. The agreement’s waiver
of equitable distribution of property does not change
this result. Although the agreement limited the court’s
discretion to distribute property, it did not limit the
trial court’s discretion to award alimony in any way.
The agreement simply stated that ‘‘a court of competent
jurisdiction shall address the issues of alimony and/or
child support . . . in the event [of] . . . divorce
. . . .’’ Indeed, the Appellate Court recently rejected a
nearly identical argument in Brody v. Brody, supra,
136 Conn. App. 790, in which the trial court properly
awarded lump sum alimony despite the existence of
a prenuptial agreement in which the parties waived
equitable distribution. The husband argued, as here,
that ‘‘the [trial] court improperly used the award of
alimony to effectuate an improper distribution of prop-
erty in violation of the parties’ prenuptial agreement.’’
Id., 788. The Appellate Court disagreed, noting that the
trial court had ‘‘broad discretion’’ to award alimony
because the prenuptial agreement ‘‘by its clear terms,
[was] concerned with equitable distributions of prop-
erty . . . not alimony awards.’’ Id., 791. Accordingly,
we conclude that the lump sum alimony award does
not constitute a functional property distribution in con-
travention of the parties’ agreement.30
II
We now turn to the defendant’s claim that the trial
court abused its discretion in ordering him to pay
$100,000 of the plaintiff’s trial attorney’s fees and
$40,000 of her appellate attorney’s fees, in light of its
other awards to her.31 Specifically, the defendant claims
that the plaintiff received ample liquid funds from the
trial court’s judgment with which to pay her attorney’s
fees, and that the trial court’s conclusion that not award-
ing her attorney’s fees would undermine its other
awards to her was unreasonable. In response, the plain-
tiff contends that the trial court properly exercised its
discretion in awarding her attorney’s fees, and reason-
ably concluded that not doing so would have under-
mined its other awards. Additionally, with respect to
the appellate attorney’s fees award, the plaintiff asserts
that she did not have sufficient liquid assets to defend
the appeal because several of the trial court’s financial
orders were stayed pending appeal. We agree with the
defendant, and conclude that the trial court abused its
discretion in awarding the plaintiff attorney’s fees.
Section 46b-62 (a) authorizes the trial court to award
attorney’s fees in a dissolution action when appropriate
in light of the ‘‘respective financial abilities’’ of the par-
ties and the equitable factors listed in § 46b-82. Turgeon
v. Turgeon, 190 Conn. 269, 280, 460 A.2d 1260 (1983);
see also footnotes 7 and 8 of this opinion. ‘‘[W]e [have]
stated three broad principles by which these statutory
criteria are to be applied. First, such awards should not
be made merely because the obligor has demonstrated
an ability to pay. Second, where both parties are finan-
cially able to pay their own fees and expenses, they
should be permitted to do so. Third, where, because
of other orders, the potential obligee has ample liquid
funds, an allowance of [attorney’s] fees is not justified.’’
Turgeon v. Turgeon, supra, 280.
‘‘A determination of what constitutes ample liquid
funds . . . requires . . . an examination of the total
assets of the parties at the time the award is made.’’
(Citation omitted; internal quotation marks omitted.)
Anderson v. Anderson, 191 Conn. 46, 59, 463 A.2d 578
(1983). We have recognized, however, that ‘‘[t]he avail-
ability of sufficient cash to pay one’s attorney’s fees is
not an absolute litmus test . . . . [A] trial court’s dis-
cretion should be guided so that its decision regarding
attorney’s fees does not undermine its purpose in mak-
ing any other financial award.’’ Devino v. Devino, 190
Conn. 36, 38–39, 458 A.2d 692 (1983); see also, e.g.,
Grimm v. Grimm, 276 Conn. 377, 398, 886 A.2d 391
(2005) (not awarding $100,000 in attorney’s fees to wife
would have ‘‘necessarily eviscerate[d]’’ any benefit she
would have received from $100,000 lump sum alimony
award), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164
L. Ed. 2d 815 (2006).
‘‘Whether to allow [attorney’s] fees, and if so in what
amount, calls for the exercise of judicial discretion’’
by the trial court. (Internal quotation marks omitted.)
Anderson v. Anderson, supra, 191 Conn. 58. ‘‘An abuse
of discretion in granting [attorney’s] fees will be found
only if [an appellate court] determines that the trial
court could not reasonably have concluded as it did.’’
(Internal quotation marks omitted.) Misthopoulos v.
Misthopoulos, 297 Conn. 358, 386, 999 A.2d 721 (2010).
In the present case, the trial court ordered the defen-
dant to pay $100,000 of the plaintiff’s trial attorney’s
fees and $40,000 of her appellate attorney’s fees. The
trial court reasoned, with respect to the trial attorney’s
fees award, that ‘‘to require the [plaintiff], who has
minimal earning capacity and the responsibility for the
primary care of four minor children age nine through
fifteen, three of whom have learning issues, to pay these
fees from her portion of the financial award . . . would
undermine the purposes of [the] same’’ and that ‘‘it
would be fair and equitable for the [defendant] to pay
[those fees].’’ After the defendant filed an appeal, the
trial court awarded the plaintiff an additional $40,000
in appellate attorney’s fees, stating that the plaintiff
needed ‘‘reasonable access to the court system [to]
defend an appeal that [the defendant] made.’’ The trial
court noted that several of its financial awards to the
plaintiff, including the $2,082,000 payment under the
agreement, the $375,000 biannual lump sum alimony
payments, and the $100,000 trial attorney’s fees award,
were automatically stayed pending the defendant’s
appeal. See Practice Book § 61-11 (a). The $40,000 per
month periodic alimony and child support payments
were not stayed, however, and the plaintiff continued
to receive those payments. See Practice Book § 61-11
(c) (‘‘no automatic stay shall apply . . . to orders of
periodic alimony, [or child] support’’). The trial court
also noted that the plaintiff had only $3700 in her bank
accounts at that time and, thus, she was ‘‘land rich but
cash poor.’’32 The trial court therefore concluded that
the plaintiff did ‘‘not have ample liquid assets’’ or
‘‘resources that are readily available’’ to pay the fees.
Four months later, the plaintiff successfully moved to
terminate the stay on the $2,082,000 payment and the
lump sum alimony award. Specifically, the plaintiff was
scheduled to receive the $2,082,000 payment and the
first $375,000 installment of the lump sum alimony
award by December 19, 2014.
We conclude that the trial court abused its discretion
in making the attorney’s fees awards because the plain-
tiff received ample liquid funds as a result of the trial
court’s judgment, and the trial court’s determination
that not awarding attorney’s fees to the plaintiff would
undermine its other awards was unreasonable. See, e.g.,
Koizim v. Koizim, supra, 181 Conn. 501. We further
disagree with the plaintiff’s contention that the appel-
late stay on the trial court’s financial orders justifies
the appellate attorney’s fees award because the trial
court could have terminated the stay sua sponte, and
because the plaintiff did, in fact, successfully move to
terminate the stay on several of those orders.
First, the trial attorney’s fees award represents a very
small portion of the liquid assets awarded to the plaintiff
in the trial court’s judgment. Pursuant to the judgment,
the plaintiff would receive: $2,082,000, the amount owed
to her under the agreement, within sixty days of the
judgment; $40,000 per month in periodic alimony and
child support, starting twelve days from the judgment;
and $7.5 million in lump sum alimony, payable in bian-
nual installments of $375,000, starting two and one-half
months from the judgment. Thus, the plaintiff would
receive liquid assets totaling $2,577,000 within three
months of the judgment.33 The trial attorney’s fees
award represents only 4 percent of this amount.34 We
have previously held attorney’s fees awards amounting
to a low portion of the payee’s liquid assets to constitute
an abuse of discretion, since the payee could easily have
paid the fees out of those assets, despite the existence
of equitable factors supporting the award. See, e.g.,
Maguire v. Maguire, supra, 222 Conn. 34–35, 44
($50,000 attorney’s fees award, which amounted to 10
percent of wife’s $500,000 in liquid assets, was abuse
of discretion, even though parties were married for forty
years and had children, husband caused breakdown of
marriage, and wife had limited earning capacity);35
Blake v. Blake, supra, 211 Conn. 488–89 (concluding
that wife could not ‘‘reasonably’’ claim that failure to
award $14,948 in attorney’s fees and expenses, which
amounted to 2 percent of wife’s $630,000 in liquid assets,
‘‘would undermine or skew the substantial financial
awards granted to her’’ and noting that awarding attor-
ney’s fees would be ‘‘gilding the lily’’ where husband
had $5,503,000 in total assets and wife had $1,535,000
in total assets); see also Blake v. Blake, supra, 207 Conn.
218–19 (parties were married for twelve years and had
three children).36 By contrast, this court and our Appel-
late Court have deemed attorney’s fees awards that
represent a more substantial part of the payee’s liquid
assets proper, because not doing so could result in the
immediate depletion of those assets, especially when
equitable factors support the award. See, e.g., Unkel-
bach v. McNary, 244 Conn. 350, 375–77, 710 A.2d 717
(1998) (wife amassed $3250 in attorney’s fees and had
liquid assets of only $1686); Eslami v. Eslami, 218
Conn. 801, 818–21, 591 A.2d 411 (1991) (trial court did
not abuse its discretion in awarding wife total of $48,230
in attorney’s fees and expert witness fees, amounting
to 15 percent of wife’s total assets, which were com-
prised of $95,000 in deposits and securities and $300,000
lump sum alimony award, less $70,650 in claimed liabili-
ties, in case where parties were married for thirty years,
husband caused breakdown of marriage, there was
‘‘great disparity’’ in parties’ income and assets, and wife
was in ‘‘poor health’’ and had ‘‘substantial continuing
medical expenses’’); Ehrenkranz v. Ehrenkranz, 2
Conn. App. 416, 417, 424, 479 A.2d 826 (1984) ($7500
attorney’s fees award, which amounted to 50 percent
of wife’s $15,000 in liquid assets, was not abuse of
discretion; parties were married for thirty years and
husband caused breakdown of marriage).37
Viewed another way, the trial attorney’s fees award
in the present case represents less than 2 percent of
the lump sum alimony award alone, not including the
$2,082,000 payment under the agreement or the $40,000
per month periodic alimony and child support pay-
ments. Similar to the comparison with the payee’s liquid
assets, attorney’s fees awards that represent a small
portion of the payee’s lump sum alimony award have
been held improper, because the payee could easily pay
his or her own attorney’s fees out of that award, even
in the wake of strong equitable factors. See, e.g., Tur-
geon v. Turgeon, supra, 190 Conn. 270, 279–81 ($10,000
in attorney’s fees and $1500 in expert witness fees
awards, amounting to 8 percent of $140,000 in total lump
sum alimony awards to wife, was abuse of discretion,
though parties were married for twenty-three years and
husband received $309,000 in assets, compared to wife’s
$100,000; property and alimony awards to wife were
‘‘generous’’ and ‘‘liquid assets being made available [to
her were] ample’’); Koizim v. Koizim, supra, 181 Conn.
493–501 ($55,000 in attorney’s fees award, amounting
to 9 percent of $600,000 lump sum alimony award and
4 percent of $1,410,000 in total assets, not including
periodic alimony award, was abuse of discretion where
parties were married for twenty-seven years, husband
earned $208,000 per year, wife earned $1000 per year,
husband was unfaithful, and wife made ‘‘significant’’
contributions to marriage, ‘‘both financial and other-
wise’’).38 Conversely, attorney’s fees awards reflecting
a more significant portion of the payee’s lump sum
alimony award, thereby potentially undermining that
award, have been held proper, especially when equita-
ble factors support the award. See, e.g., Holley v. Holley,
194 Conn. 25, 26–27 and n.1, 478 A.2d 1000 (1984) (attor-
ney’s fees award of $7500, amounting to 50 percent of
$15,000 lump sum alimony award, not including peri-
odic alimony and child support award, not abuse of
discretion where parties were married for approxi-
mately fifteen years, had one minor child, husband
earned $100,000 per year, wife earned $23,000 per year,
and husband had $280,000 in separate assets); Costa
v. Costa, 11 Conn. App. 74, 75–77, 526 A.2d 4 (1987)
(attorney’s fees award of $6000, amounting to 30 per-
cent of $20,000 lump sum alimony award, not including
periodic alimony award, not abuse of discretion where
husband had $280,000 in assets, wife had $170,000 in
assets, husband earned $58,400 per year, and wife
‘‘needed treatment for deep depression and had no
immediate prospect of being able to work’’); see also
Weiman v. Weiman, 188 Conn. 232, 235–37, 449 A.2d
151 (1982) ($10,000 attorney’s fees award to wife proper
when trial court ‘‘could reasonably have concluded that
[her] financial resources . . . were necessary to meet
her future needs’’ and alimony awarded to her ‘‘was
not substantial in amount nor was it for a long period
of time’’).39
In the present case, given the vast liquid assets
awarded to the plaintiff, and the modest nature of the
attorney’s fees when compared with those assets, the
equitable factors in § 46b-82, as incorporated into § 46b-
62, do not justify the award. See Koizim v. Koizim,
supra, 181 Conn. 500–501 (equitable factors justified
lump sum and periodic alimony awards, but not attor-
ney’s fees award). As grounds for the trial attorney’s
fees award, the trial court cited the plaintiff’s ‘‘minimal
earning capacity’’ and responsibility for caring for the
parties’ four minor children. The trial court further
stated that it would be ‘‘fair and equitable’’ for the defen-
dant to pay the fees. The trial court cited similar con-
cerns with regard to the appellate attorney’s fees award.
We have stated, however, that attorney’s fees ‘‘are not
to be awarded merely because the obligor has demon-
strated an ability to pay’’ and that ‘‘[w]here, because of
other orders, both parties are financially able to pay
their own counsel fees they should be permitted to do
so.’’ Koizim v. Koizim, supra, 500–501. Although these
factors strongly support the validity of the lump sum
alimony award, they are outweighed in the attorney’s
fees context by the fact that the fees represent but a
small fraction of the substantial liquid assets awarded
to the plaintiff.40 Cf. Misthopoulos v. Misthopoulos,
supra, 297 Conn. 383–87 ($64,000 attorney’s fees award
was proper when ‘‘the overwhelming majority of the
assets awarded to the [wife] were not liquid assets,’’
given that ‘‘[$2.6 million] of the approximately [$3.2
million] in assets awarded to the [wife] consisted of
the family home in which the [wife] and the parties’
three minor children resided’’ and ‘‘also included her
interest in a trust . . . certain retirement accounts,
vested stock and vested stock options’’).41
Lastly, the plaintiff argues that the $40,000 appellate
attorney’s fees award was, at least, proper, because the
$2,082,000 payment under the agreement and the lump
sum alimony payments were stayed pending the defen-
dant’s appeal. Thus, she claims that she did not have
ample liquid funds with which to defend the appeal.
We are unpersuaded that the stay on these orders justi-
fies the appellate attorney’s fees award. The plaintiff
always had the option of seeking to terminate the stay.
See Practice Book § 61-11 (c). As stated previously, the
plaintiff did, in fact, successfully move to terminate the
stay several months after the trial court’s award of
appellate attorney’s fees. Furthermore, the trial court
had the discretion to terminate the stay sua sponte at
any time. See Practice Book § 61-11 (d). Additionally,
although the plaintiff’s amended financial affidavit
showed only $3700 in her bank accounts, she was still
receiving $40,000 per month in periodic alimony and
child support, and attested to having personal property
worth $305,810, a home worth $2.1 million, and other
assets worth $79,794.42 See Anderson v. Anderson,
supra, 191 Conn. 60 (attorney’s fees award was abuse
of discretion when home would be sold at later date,
because sale of home would ‘‘yield liquid assets for
both parties’’). These factors, when considered in light
of the substantial liquid assets awarded to the plaintiff,
offset the significance of the temporary stay on the
orders.43
We, therefore, conclude that the trial court abused
its discretion in awarding the plaintiff attorney’s fees
under these circumstances, thus requiring reversal of
the trial court’s judgment with respect to those
awards.44 Furthermore, because we conclude that the
attorney’s fees awards are severable from the trial
court’s other financial orders, it is not necessary to
remand the case for reconsideration of all financial
matters. See Smith v. Smith, supra, 249 Conn. 277. ‘‘This
court and the Appellate 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 dependent on the other.
. . . Every improper order, however, does not neces-
sarily merit a reconsideration of all of the trial court’s
financial orders. A financial order is severable when it
is not in any way interdependent with other orders and
is not improperly based on a factor that is linked to
other factors.’’ (Citations omitted; internal quotation
marks omitted.) Id. Here, the attorney’s fees awards
are severable from the trial court’s other financial
orders and a new hearing on all financial matters is
not required.
The judgment is reversed only with respect to the
attorney’s fees awards to the plaintiff, and the case is
remanded with direction to deny the plaintiff’s motions
for trial and appellate attorney’s fees; the judgment is
affirmed in all other respects.
In this opinion ROGERS, C. J., and PALMER and
VERTEFEUILLE, Js., concurred.
1
The defendant appealed to the Appellate Court, and we transferred the
appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-2. Although the plaintiff has also filed an appeal from the judgment
of the trial court, we need not address the issues raised therein. See footnote
2 of this opinion.
2
The plaintiff also filed a ‘‘contingent’’ cross appeal; see Fortin v. Hartford
Underwriters Ins. Co., 139 Conn. App. 826, 832 n.2, 59 A.3d 247, cert. granted,
308 Conn. 905, 61 A.3d 1098 (2013) (appeal withdrawn November 26, 2014);
challenging the enforceability of the agreement in the event that the defen-
dant prevails in challenging the lump sum alimony award or in the event
the case is remanded for a new hearing on all financial matters. She contends,
however, that a new hearing on all financial matters is not required if we
reverse the trial court’s judgment only with respect to the attorney’s fees
award. See Montoya v. Montoya, 280 Conn. 605, 617, 909 A.2d 947 (2006)
(‘‘Every improper order . . . does not necessarily merit a reconsideration
of all of the trial court’s financial orders. A financial order is severable when
it is not in any way interdependent with other orders . . . .’’ [Internal quota-
tion marks omitted.]); Maguire v. Maguire, 222 Conn. 32, 47, 608 A.2d 79
(1992) (reversing trial court’s judgment with respect to attorney’s fees award
only and not ordering new hearing on all financial matters). Because we
uphold the validity of the lump sum alimony award and do not order a new
hearing on all financial matters based on our reversal of the attorney’s fees
award, we need not address the plaintiff’s ‘‘contingent’’ cross appeal.
3
The agreement provides: ‘‘It is the intention of the parties that the disposi-
tion of property in this [a]greement be deemed a disposition of property
which would fully satisfy any claims which each party may have against each
other under the laws of any jurisdiction including their rights to equitable
distribution and that the parties hereby specifically waive any equitable dis-
tribution.’’
4
In 2008, the parties entered into a modification of the agreement. The
modification clarified that the marital home remained the defendant’s sepa-
rate property and that, in the event of divorce, the defendant would pay
the plaintiff an additional $3.5 million, representing her interest in the home.
All other provisions of the original agreement remained intact.
5
The trial court’s other orders included a $2,082,000 payment to the plain-
tiff, which represented the outstanding balance owed to her under the
agreement, and the defendant’s contribution to the children’s extracurricular
fees, medical and dental expenses, and college education. The defendant
does not challenge these orders in this appeal.
6
In response to the plaintiff’s challenge to the enforceability of the
agreement, the trial court held that the agreement was valid and enforceable.
See footnote 2 of this opinion.
7
General Statutes § 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 annulment,
dissolution of the marriage or legal separation, 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
the award, if any, which the court may make pursuant to section 46b-81,
and, in the case of a parent to whom the custody of minor children has
been awarded, the desirability and feasibility of such parent’s securing
employment.’’
8
General Statutes § 46b-62 (a) provides in relevant part: ‘‘In any proceeding
seeking relief under the provisions of this chapter . . . 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 section 46b-82. . . .’’
We note that, although § 46b-62 has been amended since the events under-
lying the present appeal; see, e.g., Public Acts 2014, No. 14-3, § 5; those
amendments have no bearing on the merits of this appeal. In the interest
of simplicity, we refer to the current revision of the statute.
9
General Statutes § 46b-81 (c) provides: ‘‘In fixing the nature and value
of the property, if any, to be assigned, the court, after considering all the
evidence presented by each party, shall consider the length of the marriage,
the causes for the annulment, dissolution of the marriage or legal separation,
the age, health, station, occupation, amount and sources of income, earning
capacity, vocational skills, education, employability, estate, liabilities and
needs of each of the parties and the opportunity of each for future acquisition
of capital assets and income. The court shall also consider the contribution
of each of the parties in the acquisition, preservation or appreciation in
value of their respective estates.’’
10
We note that the defendant does not argue that the size of the lump
sum alimony award itself constitutes an abuse of discretion; only that the
excessiveness of the award makes it a property distribution. All of the
defendant’s statements with respect to the amount of the award are con-
nected to his argument that the amount of the award indicates that it is a
property distribution. He argues that ‘‘[b]ecause the lump sum [award] far
exceeds what the record shows is necessary for the plaintiff’s support . . .
the lump sum ‘alimony’ award is, in fact, a property [distribution] . . . .’’
Specifically, the defendant contends that, because ‘‘the total amount of
support far exceeds the plaintiff’s claimed expenses . . . the only reason-
able view of the lump sum award is that it is functionally a property [distribu-
tion].’’ Put a different way, the defendant asserts that, because the lump
sum alimony award is ‘‘far more than the record shows is necessary for the
plaintiff’s support,’’ the ‘‘only reasonable conclusion is that the trial court
ordered a property distribution . . . .’’
Because we are not asked to determine whether the lump sum award,
properly characterized as alimony, is so excessive that it constitutes an
abuse of discretion standing alone, we make no judgment to that effect. As
such, all references in this opinion to the claimed excess in the amount of
the award are for the sole purpose of determining whether the amount of
the award renders it a property distribution, and not whether the award
itself constitutes an abuse of discretion. Although we rely on cases in which
the alimony award, itself, constituted an abuse of discretion for guidance,
we limit our analysis to the question presented by the defendant.
11
The defendant also argues that the lump sum alimony award has features
of a property distribution because it is nonmodifiable, nontaxable, nonde-
ductible, and survives the death of either party or the remarriage of the
plaintiff. It is well settled, however, that alimony awards may—in lump sum
form—be nonmodifiable, nontaxable, nondeductible, and survive the death
or remarriage of the parties. See, e.g., Tremaine v. Tremaine, 235 Conn.
45, 59, 663 A.2d 387 (1995) (‘‘lump sum alimony is generally neither taxable
to the payee nor deductible by the payor’’); Scoville v. Scoville, 179 Conn.
277, 279–80, 426 A.2d 271 (1979) (‘‘Lump sum alimony, unlike periodic
alimony . . . cannot be modified even should there be a substantial change
in circumstances. . . . This is true even if the lump sum alimony is . . .
payable in installments.’’ [Citations omitted.]); Pulvermacher v. Pulver-
macher, 166 Conn. 380, 385, 349 A.2d 836 (1974) (‘‘[l]ump sum alimony,
even where divided into [installments], is payable in full regardless of future
events such as the death of the husband or the remarriage of the wife’’);
cf. Parisi v. Parisi, 315 Conn. 370, 384, 107 A.3d 920 (2015) (traditional
alimony ‘‘typically’’ taxable and deductible); Lynch v. Lynch, 153 Conn. App.
208, 224, 100 A.3d 968 (2014) (periodic alimony ‘‘accrue[s]’’ at later date),
cert. denied, 315 Conn. 923, 108 A.3d 1124, cert. denied, U.S. , 136
S. Ct. 68, 193 L. Ed. 2d 66 (2015). Thus, those features of the award do not
necessarily render it a property distribution.
12
The trial court stated: ‘‘[T]he parties had agreed that in the event of
divorce, the [defendant] would pay the [plaintiff] pursuant to the original
prenuptial agreement, in accordance with a formula . . . the agreement
does not prohibit the award of alimony . . . .’’
13
The trial court cited Dombrowski v. Noyes-Dombrowski, supra, 273
Conn. 137–38, in which the trial court properly treated a spouse’s lottery
payments as alimony, rather than as a property distribution, and Pacchiana
v. McAree, 94 Conn. App. 61, 68–71, 891 A.2d 86, cert. denied, 278 Conn.
922, 901 A.2d 1221 (2006), in which the trial court properly awarded lump
sum alimony.
14
The trial court listed § 46b-81 as one of the statutes it considered in
fashioning its orders, but apparently only in reference to the enforceability
of the agreement. The court noted that it was ‘‘mandated to take into consid-
eration a dozen specific factors as set forth in . . . § 46b-81’’ when contem-
plating the enforceability of the agreement. Thus, the trial court’s citation
to § 46b-81 in another part of its decision does not indicate that it considered
§ 46b-81 in awarding lump sum alimony.
15
Both §§ 46b-81 (c) and 46b-82 (a) list the following factors to be consid-
ered when distributing property or awarding alimony: the length of the
marriage; the cause of the breakdown of the marriage; and the age, health,
station, occupation, amount and sources of income, earning capacity, voca-
tional skills, education, employability, estate, and needs of each of the
parties. Three additional factors appear exclusively in § 46b-81 (c): ‘‘the
opportunity of each [party] for future acquisition of capital assets and
income’’; ‘‘the contribution of each of the parties in the acquisition, preserva-
tion or appreciation in value of their respective estates’’; and the ‘‘liabilities
. . . of each of the parties . . . .’’ Section 46b-82 (a) lists two additional,
but different, factors: ‘‘the award, if any . . . [made] pursuant to section
46b-81, and, in the case of a parent to whom the custody of minor children
has been awarded, the desirability and feasibility of such parent’s secur-
ing employment.’’
16
A spouse’s ability to acquire future assets also appears related to the
concept of the spouse’s ‘‘station, occupation, amount and sources of income,
earning capacity, vocational skills, education, [and] employability . . . .’’
General Statutes § 46b-82 (a). Moreover, a spouse’s contribution to the
marital estate may be implicit in the court’s consideration of the parties’
‘‘estate . . . .’’ General Statutes § 46b-82 (a); see Smith v. Smith, 249 Conn.
265, 284, 752 A.2d 1023 (1999) (noting that husband’s travel expenses in
seeing children ‘‘falls squarely within the general criterion of the ‘needs of
each of the parties’ ’’ under § 46b-82). The fact that § 46b-82 (a) mandates
consideration of any property awards made pursuant to § 46b-81 when
awarding alimony further supports the interrelatedness of the statutes.
17
The defendant argues that the agreement restricted the trial court’s
discretion to consider the equitable factors that appear in the property
distribution statute. The agreement’s language pertaining to alimony, how-
ever, does not restrict the trial court’s discretion in any way: ‘‘The parties
agree that a court of competent jurisdiction shall address the issues of
alimony and/or child support . . . in the event [of] . . . divorce . . . .’’
See also Brody v. Brody, 136 Conn. App. 773, 791, 51 A.3d 1121 (2012)
(trial court had ‘‘broad discretion’’ to award alimony because prenuptial
agreement ‘‘by its clear terms, [was] concerned with equitable distributions
of property . . . not alimony awards’’), rev’d in part on other grounds, 315
Conn. 300, 105 A.3d 887 (2015). Moreover, it would be imprudent to require
the trial court to consider a different set of factors when awarding alimony
in a case in which the parties waived equitable distribution in a prenuptial
agreement than under other circumstances.
18
See Regs., Conn. State Agencies § 46b-215a-5c (b) (3) (A) (listing ‘‘signifi-
cant visitation expenses’’ as factor in awarding child support).
19
The fact that this court has not prohibited the trial court from considering
the needs of the parties’ children when dividing marital property further
undermines the defendant’s argument. See, e.g., Blake v. Blake, supra, 207
Conn. 232 (‘‘[w]hich spouse has primary physical custody of minor children
is also a consideration in determining the division of marital assets’’
[emphasis added]); see also Robinson v. Robinson, supra, 187 Conn. 72
(court may consider equitable factors not listed in § 46b-81 when distribut-
ing property).
20
Justice Zarella argues in his dissent that, when a prenuptial agreement
distributes all of the property in a dissolution action, an alimony award
functions as a property distribution that violates that agreement when it: (1)
exceeds the recipient spouse’s expenses, plus, if appropriate, a reasonable
amount based on the trial court’s resolution of the equitable factors; and
(2) exceeds the payor spouse’s income, thus apparently requiring the spouse
to dip into his or her assets. Even if we agree with this formulation of a
functional property distribution, we disagree that it applies to this case for
two reasons.
First, the defendant does not claim that he must invade his assets to make
the alimony and child support payments and, accordingly, he does not argue
that his need to do so indicates that the lump sum award is a functional
property distribution. He simply argues that, because the alimony and child
support awards apparently exceed the plaintiff’s claimed expenses, the
award is actually a property distribution. As acknowledged by Justice Zarella,
‘‘this fact alone does not make the lump sum alimony award a functional
property distribution.’’ We respectfully disagree, however, with Justice Zarel-
la’s subsequent assertion and consideration of the defendant’s purported
need to dip into his assets—the second factor in his two part test—in
concluding that the lump sum alimony award is a functional property distri-
bution. The defendant did not raise or brief this claim and, as such, the
plaintiff did not have an opportunity to address whether the defendant had
to invade his assets to pay the awards or the effect that it would have on
this court’s determination of whether the lump sum award is a functional
property distribution.
We respectfully disagree with Justice Zarella’s contention that the defen-
dant’s argument that he must invade his assets is ‘‘necessarily subsumed’’
within his claim that the award is a functional property distribution. The
defendant’s argument may reasonably be understood as being that, because
the award exceeds the plaintiff’s claimed expenses, the award is actually a
property distribution, regardless of how he pays the award—out of his
income or assets. Cf. Michael T. v. Commissioner of Correction, 319 Conn.
623, 635 n.7, 126 A.3d 558 (2015) (respondent’s ‘‘argument’’ that ‘‘there was
a strategic reason not to call an expert’’ was ‘‘subsumed’’ within its ‘‘claim’’
that ‘‘habeas court incorrectly determined that . . . petitioner’s trial coun-
sel rendered ineffective assistance by failing to present expert testimony’’).
Moreover, even if the parties discussed this issue at oral argument, it is well
settled that a claim cannot be raised for the first time at oral argument.
State v. Lenarz, 301 Conn. 417, 483 n.22, 22 A.3d 536 (2011). We find Justice
Zarella’s distinction between claims and arguments unpersuasive in this
context, considering the plaintiff’s inability to brief and fully respond to the
invasion of assets issue. See Michael T. v. Commissioner of Correction,
supra, 635 (petitioner could not claim to have been ‘‘ambushed’’ by respon-
dent’s argument that there was strategic reason not to call expert, in support
of claim that habeas court improperly determined that petitioner’s trial
counsel rendered ineffective assistance by not calling expert). We therefore
address the issue as squarely presented by the defendant. See also footnote
10 of this opinion.
Second, even if the defendant had briefed this claim, we cannot presume
that he must invade his assets to pay the alimony and child support awards
based upon this record. The posture of this case presents us with a significant
anomaly. Although the trial court made findings as to the defendant’s income
at the time of trial, our review of the record indicates that the court did
not make any determination as to whether its finding of the defendant’s
income was also a finding of his earning capacity. See General Statutes
§ 46b-82 (a) (in awarding alimony trial court ‘‘shall consider the . . . earning
capacity . . . of each of the parties’’); Auerbach v. Auerbach, 113 Conn.
App. 318, 334–35, 966 A.2d 292 (court may base financial awards on earning
capacity rather than actual earned income), cert. denied, 292 Conn. 902,
971 A.2d 40 (2009). Without establishing this factual predicate, we cannot
agree with Justice Zarella’s conclusion that the defendant would have to
dip into assets that were the subject of the prenuptial agreement, because
we cannot presume that the defendant would need to invade those assets
to satisfy the awards. See In re Jason R., 306 Conn. 438, 453, 51 A.3d 334
(2012) (‘‘[w]e read an ambiguous trial court record so as to support, rather
than contradict, its judgment’’). For illustrative purposes, we note that the
defendant earned significantly more income—enough to pay the alimony
and child support awards without utilizing any assets—in several years
leading up to the dissolution of the marriage. For example, in 2006, he
earned $1,687,677 in yearly income, which equates to $140,639 per month—
more than enough to pay the alimony and child support awards and maintain
a considerably high standard of living. The following year, he earned
$1,253,766 in yearly income, which equates to $104,480 per month, which
is still enough to cover the alimony and child support payments. To the
extent that the defendant’s earning capacity is, in Justice Zarella’s words,
‘‘theoretical,’’ it is only so because the trial court did not make such a finding.
In the absence of such a finding, we read the record to support, rather than
undermine, the trial court’s judgment. DeNunzio v. DeNunzio, 320 Conn.
178, 197, 128 A.3d 901 (2016). Thus, even if we agreed with Justice Zarella’s
formulation of a functional property distribution, these unusual facts prevent
us from agreeing with his application of the formulation to this unique case.
21
Although Justice Zarella states that the trial court was ‘‘entitled to rely
on the truth and accuracy of [the parties’] affidavits,’’ he calculates the
plaintiff’s expenses to be $45,000 per month. Using this figure, in conjunction
with the defendant’s expenses and the plaintiff’s pendente lite alimony and
child support award, he concludes that the parties need ‘‘approximately
$45,000 per month’’ to maintain the marital standard of living. As Justice
Zarella acknowledges, however, ‘‘[t]he trial court made no finding regarding
the marital standard of living or the monthly marital expenses.’’
22
The parties did not move for an articulation as to whether the trial
court considered the plaintiff’s financial affidavit to accurately portray the
standard of living of the marriage. Cf. Matza v. Matza, 226 Conn. 166, 185,
627 A.2d 414 (1993) (trial court explicitly stated that ‘‘parties did not during
their marriage years enjoy a high standard of living as claimed by the [wife]’’).
23
The plaintiff, however, estimated the fair market value of the marital
home to be $10 million.
24
The record reflects that the defendant earned $1,249,989 in 2004,
$902,025 in 2005, $1,687,677 in 2006, $1,253,766 in 2007, and $575,262 in 2008.
25
We look to the standard of living of the marriage and the equitable
factors in § 46b-82 to help us determine whether the lump sum alimony award
is a functional property distribution. In concluding that these considerations
support the characterization of the award as alimony and not a property
distribution, we do not suggest that award is ‘‘not excessive or improper
at all,’’ as Justice Zarella contends in his dissent. As stated previously, we
make no judgment as to the excessiveness or propriety of the alimony award
as alimony. See footnote 10 of this opinion. Although we utilize the same
considerations, we do so in an effort to discern whether the lump sum
alimony award is actually alimony or a disguised property distribution.
26
The plaintiff admitted to a one year long affair late in the marriage, but
the trial court determined that it did not lead to the breakdown of the
marriage. The trial court stated that ‘‘ample evidence exists that, while both
parties have contributed to said breakdown, the [defendant] must bear the
greater share.’’
27
Specifically, the trial court stated: ‘‘As to the breakdown of the marriage,
the [plaintiff] testified at length about the [defendant’s] frequent use of
inappropriate language and his bizarre behavior, toward her and others,
that was both demeaning and . . . crude. In addition, he frequently mim-
icked her tendency to stutter when placed in stressful situations. She admit-
ted to a [one year] long affair late in the marriage. That relationship, now
long since ended, was not the cause of the breakdown. Evidence supports
a finding that the cause for the breakdown is primarily attributable to the
[defendant]. It is abundantly clear that right from the beginning, with the
execution of the . . . agreement, that [the defendant] was not looking for
a true marital partner, and has shut the [plaintiff] out both fiscally and
emotionally. He is a controlling, emotional bully, who has failed to appreciate
[the plaintiff’s] true worth as a wife, let alone her contributions. He offers
her the minimum, which he believes that he can, in order to preserve the
greater bulk of his assets for himself. The [defendant], she said, engaged
in frequent, long-winded arguments about his plans, and badgered her to
go along with his ideas, such as the . . . agreement. She told the court that
she had a hard time being heard, that [the defendant] ignored her important
requests, and that she did not feel that she was a real partner.’’
28
This figure accounts for the defendant’s $2,082,000 payment to the
plaintiff.
29
This figure includes the $2,082,000 payment owed to the plaintiff under
the agreement.
30
We acknowledge Justice Zarella’s concerns with the ‘‘practical conse-
quences’’ of this opinion. To the extent that trial courts, however, may be
tempted to circumvent a lopsided property distribution contained in an
otherwise enforceable prenuptial agreement by awarding large amounts of
alimony, ‘‘[j]udicial restraint counsels us to commend the issue to the atten-
tion of the legislature for further review . . . .’’ Connecticut Podiatric Medi-
cal Assn. v. Health Net of Connecticut, Inc., 302 Conn. 464, 473 n.6, 28 A.3d
958 (2011). The trial court in the present case properly applied the statutory
factors in § 46b-82, and properly adhered to the Connecticut Premarital
Agreement Act (act) by enforcing the agreement and distributing the parties’
property in accordance with that agreement. See General Statutes § 46b-
36a et seq. Specifically, with respect to the agreement, the trial court cited
the act and concluded that ‘‘[u]nder all the facts and circumstances, the
[agreement] was fair and equitable at that time, and therefore a valid
agreement.’’
We further note that when a trial court awards a spouse alimony exceeding
his or her claimed expenses in the wake of a prenuptial agreement distribut-
ing all of the parties’ property, the award may still be challenged as excessive
alimony, rather than a functional property distribution. Today’s result does
not change this fact. As noted previously, the defendant did not ask us to
proclaim the lump sum award as excessive even if we determine that the
award is not a functional property distribution. See footnote 10 of this
opinion.
31
The defendant also claims that the agreement prohibits an award of
attorney’s fees. The plaintiff argues that this claim is unpreserved because
the defendant did not raise this claim at trial, he raised it for the first time
in his objection to the plaintiff’s postjudgment motion for appellate attorney’s
fees. See, e.g., Practice Book § 60-5 (‘‘[an appellate] court shall not be bound
to consider a claim unless it was distinctly raised at the trial or arose
subsequent to the trial’’); Cunniffe v. Cunniffe, 150 Conn. App. 419, 441,
91 A.3d 497 (appellant must ‘‘bring to the attention of the court the precise
matter on which its decision is being asked’’ [emphasis omitted]), cert.
denied, 314 Conn. 935, 102 A.3d 1112 (2014). Because we conclude that the
attorney’s fees award constitutes an abuse of discretion even if authorized
under the agreement, we need not address the defendant’s claim that the
agreement bars an award of attorney’s fees. Accordingly, we need not con-
sider the plaintiff’s contention that the defendant failed to preserve this
claim for review. See FairwindCT, Inc. v. Connecticut Siting Council, 313
Conn. 669, 677 n.11, 99 A.3d 1038 (2014).
32
In connection with the plaintiff’s motion for appellate attorney’s fees,
the trial court also addressed, for the first time, the defendant’s argument
that the agreement barred an award of attorney’s fees. See footnote 31 of
this opinion. The trial court found that the defendant had waived or was
equitably estopped from asserting this claim by previously agreeing to pay
some of the plaintiff’s attorney’s fees. See Glazer v. Dress Barn, Inc., 274
Conn. 33, 60, 873 A.2d 929 (2005) (‘‘[e]quitable estoppel is a doctrine that
operates in many contexts to bar a party from asserting a right that it
otherwise would have but for its own conduct’’); Lanna v. Greene, 175
Conn. 453, 458, 399 A.2d 837 (1978) (party may waive provisions in contract
included solely for his or her benefit); see also Rosado v. Bridgeport Roman
Catholic Diocesan Corp., 292 Conn. 1, 58, 970 A.2d 656 (waiver may be
implied by conduct), cert. denied, 558 U.S. 991, 130 S. Ct. 500, 175 L. Ed.
2d 348 (2009). During litigation, the parties entered into a stipulation that
the trial court made an order of the court, in which the defendant agreed
to pay $250,000 of the plaintiff’s attorney’s fees. The trial court noted in its
oral decision on the plaintiff’s motion for appellate attorney’s fees that, even
if the agreement barred an award of attorney’s fees, the defendant ‘‘basically
undercut the terms of the agreement’’ by agreeing to pay some of the
plaintiff’s attorney’s fees pendente lite. The defendant argues that the trial
court’s finding that he waived or was equitably estopped from claiming that
the agreement bars an award of attorney’s fees was clearly erroneous,
because the parties agreed in the stipulation that ‘‘[t]he [plaintiff] shall not
be precluded from seeking additional [attorney’s] fees, pendente lite, and
the [defendant] shall not be precluded from opposing the [plaintiff’s] request
for additional [attorney’s] fees.’’ See Banks Building Co., LLC v. Malanga
Family Real Estate Holding, LLC, 102 Conn. App. 231, 239, 926 A.2d 1
(2007) (‘‘waiver [is a question] of fact . . . we will not disturb the trial
court’s [finding] unless [it is] clearly erroneous’’ [internal quotation marks
omitted]); see also Fischer v. Zollino, 303 Conn. 661, 667–68, 35 A.3d 270
(2012) (reviewing trial court’s finding of equitable estoppel for clear error).
Because we hold that even if the agreement authorized an award of attorney’s
fees, such an award constituted an abuse of discretion under the circum-
stances, we need not address the defendant’s claim that the agreement bars
an award of attorney’s fees. See footnote 31 of this opinion. We therefore
need not address the defendant’s challenge to the trial court’s finding that
he had waived or was equitably estopped from asserting this claim.
33
The trial court’s judgment, dated March 20, 2014, ordered the defendant
to pay to the plaintiff: $40,000 per month commencing April 1, 2014; $375,000
every six months commencing June 1, 2014; and $2,082,000 within sixty
days of the judgment.
34
The combined trial and appellate attorney’s fees awards represent less
than 6 percent of this amount.
35
We respectfully disagree with Justice Eveleigh’s argument in his dissent,
that Maguire is ‘‘easily distinguishable’’ from the present case. Justice Eve-
leigh argues that, contrary to Maguire, the following equitable factors justify
the attorney’s fees awards in the present case: the parties’ seventeen year
marriage; the defendant’s mistreatment of the plaintiff, which caused the
breakdown of the marriage; and the plaintiff’s limited earning capacity. All
of these factors, however, weighed heavily in Maguire—some even more
so than in the present case—but this court nonetheless determined in Magu-
ire that the attorney’s fees award constituted an abuse of discretion. Maguire
v. Maguire, supra, 222 Conn. 43–45. In Maguire, the parties were married
for forty years, rather than seventeen, and the husband mistreated the wife.
Id., 35 (‘‘[the wife’s] participation as the linchpin of the family, as the wife,
lover, mother, homemaker . . . means, and has meant, nothing to the [hus-
band]’’ [internal quotation marks omitted]); see also id., 34–35 (‘‘ ‘In all the
years of their marriage . . . the [husband] never placed any property in his
wife’s name . . . . He has provided for their children who are totally self-
sufficient. He has provided for the future for his secretary and for himself,
but not for his wife. He dismissed her fears and concerns for her future
with the comment ‘‘the [s]tate will take care of you.’’ ’ ’’). The wife in Maguire
had a limited earning capacity, and was sixty years old, compared to the
plaintiff’s forty-five years. See id., 35 (‘‘[t]his woman is . . . past her peak
as an active real estate saleswoman, and the real estate business is in
shambles’’ [internal quotation marks omitted]). The wife in Maguire also
received more than $3 million in assets, not including her $500,000 in liquid
assets, just as the plaintiff received more than $4 million in assets, not
including the liquid assets she would receive from her other awards. Id., 41
n.8, 44. Despite these factors, this court concluded in Maguire that ‘‘nothing
in the record’’ would support a finding that the attorney’s fees award was
necessary to avoid undermining the wife’s other awards. Id., 44–45.
36
Justice Eveleigh asserts in his dissent that Blake is distinguishable based
on the trial court’s attempt to punish the husband with the attorney’s fees
award. We disagree. In Blake, the court did not reverse the award of attor-
ney’s fees based solely on the trial court’s attempt to ‘‘punish’’ the husband.
See Blake v. Blake, supra, 211 Conn. 487–89. Rather, the court went on to
determine whether the award constituted an abuse of discretion under, inter
alia, § 46b-62, Koizim v. Koizim, supra, 181 Conn. 492, and Fitzgerald v.
Fitzgerald, 190 Conn. 26, 29–30, 459 A.2d 498 (1983), none of which concern
punishment of a litigant through an attorney’s fees award. Blake v. Blake,
supra, 211 Conn. 487–89; see also id., 489 (‘‘In the light of the plaintiff’s
net assets of over [$1.5 million] and her liquid assets of $630,000, it cannot
reasonably be claimed that the failure to award $14,947.63 for attorney’s
fees and expenses would undermine or skew the substantial financial awards
granted to her in the dissolution judgment. To award counsel fees under
these circumstances is gilding the lily. The court abused its discretion in
making such an order.’’ [Emphasis added.]). Accordingly, we disagree with
Justice Eveleigh’s argument that Blake is ‘‘distinguishable from the facts of
the present case.’’
37
But see Emanuelson v. Emanuelson, 26 Conn. App. 527, 533–34, 602
A.2d 609 (1992) (attorney’s fees award amounting to 3 percent of wife’s liquid
assets not abuse of discretion in light of parties’ thirty-five year marriage, fact
that husband caused breakdown of marriage, and ‘‘great disparity’’ between
parties’ earning capacities).
38
Although this court and the Appellate Court did not actually calculate
the percentage of the alimony award that the attorney’s fees award repre-
sented in these cases, they did compare the size of the attorney’s fees award
to the alimony award. In fact, they could not avoid such comparisons in
order to determine whether the spouses had ‘‘ample liquid funds’’ with which
to pay the attorney’s fees, or whether an award of attorney’s fees was
necessary to avoid undermining their alimony awards. Anderson v. Ander-
son, supra, 191 Conn. 59. Calculating the percentages in these cases only
helps compare them to the present case for illustrative purposes, notwith-
standing Justice Eveleigh’s criticism of these calculations in his dissent.
39
But see Devino v. Devino, supra, 190 Conn. 38–39 (attorney’s fees award
amounting to 7 percent of lump sum alimony award was not abuse of
discretion, when wife had only $2000 in assets and income of $200 per
week); Pacchiana v. McAree, 94 Conn. App. 61, 71–72, 891 A.2d 86 (attorney’s
fees award amounting to 4 percent of lump sum alimony award not abuse
of discretion due to wife’s ‘‘relatively low level of earnings,’’ husband’s
‘‘periodic receipt of substantial distributions from his investment activities,’’
and court’s decision not to award periodic alimony to wife), cert. denied,
278 Conn. 922, 901 A.2d 1221 (2006).
40
We disagree with Justice Eveleigh’s characterization in his dissent of
our analysis as a ‘‘purely mathematical calculation . . . .’’ We simply use
percentages to place our prior case law into perspective, in light of the
massive financial awards rendered in this case. We do not contend that
attorney’s fees awards amounting to 4 or 6 percent of a spouse’s assets
constitute a per se abuse of discretion. See, e.g., Damon v. Damon, 23 Conn.
App. 111, 113–14, 579 A.2d 124 (1990) (‘‘[a]lthough the assets awarded to
the [husband] equaled more than 85 percent of the total marital assets, that
is not a per se abuse of discretion’’). Rather, these percentages elucidate
the financial circumstances of the parties and help us determine whether
the equitable factors justify the award of attorney’s fees. In this vein, we do
not ‘‘ignore’’ the equitable factors or attempt to ‘‘boil down these [equitable]
considerations to a mathematical equation’’ as Justice Eveleigh suggests.
We instead evaluate the equitable factors in the context of these percentages.
Furthermore, we see no reason why such calculations should be barred
in the attorney’s fees context when both this court and the Appellate Court
have used similar calculations to evaluate divisions of property under § 46b-
81 and alimony awards under § 46b-82, in conjunction with the equitable
factors listed in those statutes, which are the same as those applicable under
§ 46b-62. See footnote 15 of this opinion; see also, e.g., Greco v. Greco, supra,
275 Conn. 356, 360 (concluding that, ‘‘[u]nder the circumstances’’ presented,
award providing ‘‘98.5 percent of the marital estate’’ to wife and ‘‘less than
2 percent’’ to husband was improper); Sweet v. Sweet, 190 Conn. 657, 664, 462
A.2d 1031 (1983) (upholding awards when trial court properly ‘‘considered all
the statutory factors, including the fact that the marital home represented
almost 90 percent of all family assets’’ [emphasis added]); Turgeon v.
Turgeon, supra, 190 Conn. 279 (husband properly awarded ‘‘approximately
76 percent’’ of total marital assets); Koizim v. Koizim, supra, 181 Conn.
496–97 (upholding property and alimony awards when assets distributed to
plaintiff represented ‘‘52 percent of the total assets as calculated by the
plaintiff and 46 percent of the total assets as calculated by the defendant,’’
and noting that ‘‘[c]alculated another way, the value of assets’’ would repre-
sent ‘‘39 percent of family wealth’’); Pellow v. Pellow, 113 Conn. App. 122,
129, 964 A.2d 1252 (2009) (alimony and child support awards consuming
‘‘more than 90 percent’’ of husband’s income excessive); Valentine v. Valen-
tine, 149 Conn. App. 799, 807, 90 A.3d 300 (2014) (alimony and child support
payments that ‘‘constituted more than 80 percent’’ of husband’s income was
abuse of discretion).
Ultimately, not including these percentages in our opinion, and simply
listing the panoply of financial awards in our prior cases, along with the
equitable factors, would be unhelpful to the bench, bar, and members of
the public who rely on our opinions for meaningful guidance.
41
In Misthopoulos v. Misthopoulos, supra, 297 Conn. 389, this court made
the following observation: ‘‘[T]he trial court determined that the [husband]
had used the parties’ marital assets to pay his attorney’s fees . . . . By
requiring the [husband] to pay an additional $50,000 of the [wife’s] trial
attorney’s fees and a portion of her appellate attorney’s fees, it is reasonable
to presume that the trial court was attempting to equalize the amount of
marital assets that were used to pay each of the parties’ attorney’s fees.’’
42
The plaintiff, however, claimed monthly expenses of $44,332 and liabili-
ties of $68,142, not including the attorney’s fees.
43
But see Ehrenkranz v. Ehrenkranz, supra, 2 Conn. App. 424 ($7500
attorney’s fees award not abuse of discretion, when wife had $15,000 in
liquid assets, and $2500 per month periodic alimony payments and first
$23,000 installment of $116,000 lump sum alimony award were stayed pend-
ing husband’s appeal).
44
Like Justice Eveleigh, ‘‘[w]e are fully cognizant of the reluctance of
appellate courts in Connecticut to disturb the discretionary findings of the
trial court in dissolution cases. . . . Delay and uncertainty create hardship
for all concerned, more frequently for the recipient of the disputed award.
. . . Reluctance to reverse the trial court’s exercise of discretion, however,
should not mean that the door is entirely closed to successful appeals in
dissolution cases. Limited appellate review in dissolution cases must not
be a mere shibboleth on the basis of which the appellate court makes such
review a nullity. . . . This practice does not establish the proposition that
such an award should never be disturbed, but rather that it should be
disturbed only under the clearest circumstances.’’ (Footnote omitted; inter-
nal quotation marks omitted.) Ehrenkranz v. Ehrenkranz, supra, 2 Conn.
App. 421. In the present case, when the attorney’s fees awards represent
such a miniscule amount of the spouse’s liquid assets and total financial
awards, the ‘‘clearest circumstances’’ are present. Id. We must be mindful
not to ‘‘abdicat[e] . . . our responsibility for appellate review’’ in these
matters. Koizim v. Koizim, supra, 181 Conn. 498.