Oudheusden v. Oudheusden

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PENNY OUDHEUSDEN v. PETER OUDHEUSDEN
(SC 20330)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
The defendant, whose marriage to the plaintiff had been dissolved, appealed
to the Appellate Court from the judgment of the trial court. The trial
court had awarded the plaintiff $18,000 per month in alimony that was
not modifiable in duration or amount. The trial court found that the
defendant’s gross annual income of $550,000 was derived from two
closely held businesses that he owned, which were valued at $904,000.
As part of its financial orders, the court awarded 50 percent of the fair
market value of the two businesses to each party and ordered that the
defendant retain 100 percent ownership of both businesses. On appeal
to the Appellate Court, the defendant claimed, inter alia, that the trial
court impermissibly double counted his income by considering it both
for the purpose of valuing his businesses and in making its alimony
award. The Appellate Court reversed in part the trial court’s judgment
and remanded the case for a new hearing on all financial issues. The
Appellate Court concluded that the trial court had abused its discretion
in failing to issue equitable orders and to consider, with respect to its
alimony award, the possibility that the defendant, who was fifty-eight
years old at the time of the dissolution and had a history of alcohol
abuse, could become ill or might want to retire, or that his businesses
could fail to thrive through no fault of his own. The Appellate Court
further determined that the trial court had engaged in double counting.
On the granting of certification, the plaintiff appealed to this court. Held:
1. The Appellate Court correctly concluded that the trial court had abused
its discretion in awarding the plaintiff $18,000 per month in alimony
that was not modifiable in duration or amount, as there was insufficient
evidence that the award accounted for a substantial change in the defen-
dant’s circumstances: the trial court failed to consider or afford any
significant weight to the defendant’s age, health and future earning
capacity, and, to the extent that it did consider these factors, the court
could not reasonably have concluded that the defendant would continue
to earn the same income for the rest of his life; moreover, although
the evidence certainly supported the conclusion that the defendant’s
businesses would likely thrive for some time, the evidence did not
support a finding that the growth of those businesses would necessarily
be perpetual, and it was unreasonable for the trial court to conclude
that the defendant would have the ability to comply with his alimony
obligation for the rest of his life without some provision for modification
should health or economics prevent compliance; accordingly, this court
upheld the Appellate Court’s reversal of the trial court’s financial orders
and its remand for a new hearing on all financial issues.
2. The trial court did not improperly engage in double counting, as the rule
against double counting does not apply when the distributed asset is
the value of a business and alimony is based on income earned from
that business: this court relied on the decisions of courts in other jurisdic-
tions in concluding that it is not double counting to award a spouse a
lump sum representing a portion of the value of a business as well as
alimony that is based on the paying spouse’s actual income from that
business; nevertheless, trial courts should consider all statutorily
required factors and ensure that the awards as a whole are fair and
equitable, and such consideration might include ensuring that the prop-
erty distribution of a portion of a business’ value to the nonowing spouse
does not unfairly reduce the owning spouse’s ability to earn income
from that business.
Argued June 10, 2020—officially released April 27, 2021*
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk and tried to the court, Tin-
dill, J.; judgment dissolving the marriage and granting
certain other relief, from which the defendant appealed
to the Appellate Court, Alvord, Keller and Eveleigh, Js.,
which reversed the judgment in part and remanded the
case for further proceedings, and the plaintiff, on the
granting of certification, appealed to this court.
Reversed in part; further proceedings.
Scott T. Garosshen, with whom were Kenneth J.
Bartschi and, on the brief, Michael T. Meehan, for the
appellant (plaintiff).
Yakov Pyetranker, for the appellee (defendant).
Opinion
D’AURIA, J. The dispositive issue in this appeal is
whether the Appellate Court correctly concluded that
the trial court had abused its discretion in awarding
the plaintiff, Penny Oudheusden, $18,000 per month in
permanent, nonmodifiable alimony. On this issue, we
agree with the Appellate Court and the defendant, Peter
Oudheusden, that the award constituted an abuse of
discretion, and we therefore affirm the Appellate
Court’s order of remand to the trial court for a hearing
on new financial orders.
Also presented in this appeal is the question of
whether the trial court, in its financial orders, equitably
divided the marital estate or, instead, inappropriately
engaged in ‘‘double counting’’ by awarding the plaintiff
half of the value of the defendant’s businesses among
its orders dividing the marital property, while also
awarding the plaintiff alimony on the basis of income
generated by those businesses, which made up the
defendant’s sole sources of income. Because the issue
of double counting is likely to reoccur on remand, and
because we have not provided sufficient guidance con-
cerning what constitutes double counting in contexts
beyond those specifically implicated in our own case
law, we reach this issue and agree with the plaintiff
that this court’s rule against double counting does not
apply when, as in the present case, the asset at issue
is the value of a business. Accordingly, we affirm in part
and reverse in part the judgment of the Appellate Court.
The record reveals the following facts and procedural
history. In its memorandum of decision, the trial court
made several ‘‘key findings’’ of fact that the defendant
does not challenge on appeal. The defendant was at
fault for the irretrievable breakdown of the marriage
in August, 2015. The defendant was the sole financial
support of the plaintiff and their children beginning in
1988, and the plaintiff made significant, nonfinancial
contributions to the family, including serving as the
primary caretaker for the parties’ children.
The defendant’s gross annual income, which the
court found to be $550,000, derives exclusively from
his two closely held businesses. The defendant, ‘‘for
the past thirty-two years, intentionally concealed the
exact nature of the business[es] and marital finances
from the plaintiff.’’ The court found the defendant’s
testimony regarding the amount of his annual income,
profit, cash flow, business expenses, and personal
expenses not credible, and did not credit the testimony
of his expert witness, who had testified as to the busi-
nesses’ value. Instead, the court credited the testimony
of the plaintiff and her expert witness, James R. Guber-
man, who determined that the combined fair market
value of the defendant’s two businesses was $904,000
($512,000 for Connecticut Computer & Consulting Com-
pany, Inc., and $392,000 for WriteResult, LLC). Guber-
man used three different valuation methods and then
applied a weighted average of those three methods to
determine the fair market value of the businesses.
Finally, the court found that the defendant’s neglect of
the marital home, located at 93 Cutler Road in Green-
wich, and his failure to pay the mortgage beginning
October 1, 2015, caused a loss of equity in the home
of $162,339.89.
On the basis of these findings, the trial court found
that a lifetime, periodic alimony award to the plaintiff
was ‘‘appropriate and necessary.’’ Specifically, the court
stated: ‘‘The purpose of the court’s alimony award is
to provide a measure of financial security to the plain-
tiff, who has not worked outside of the marital home
in nearly three decades, has $2095 in retirement funds,
and has significantly less ability to acquire income or
assets in the future than does the defendant. The plain-
tiff has limited earning potential. She is fifty-five years
old, hearing impaired, and a cancer survivor. The plain-
tiff earned a bachelor’s degree in international market-
ing . . . and a master’s degree in teaching . . . . She
is no longer licensed to teach.’’ The trial court made
no express findings as to the defendant’s age (it is
undisputed that he was fifty-eight years of age at the
time of dissolution), health, or future earning potential.
In its financial orders, the trial court awarded the
plaintiff periodic alimony in the amount of $18,000 per
month ‘‘until the plaintiff’s death, remarriage, cohabita-
tion . . . or civil union, whichever shall occur first.’’
The court made the alimony award ‘‘nonmodifiable as
to duration and amount.’’ In its property distribution,
the trial court distributed the marital assets and debts
as follows. The parties had three significant assets: the
defendant’s two businesses and the marital home. The
trial court awarded 50 percent of the fair market value
of the defendant’s two businesses to each party, order-
ing the defendant to pay the plaintiff $452,000, repre-
senting her half of the businesses’ value. The court
awarded the defendant 100 percent ownership of both
businesses. The court also awarded the defendant own-
ership of the marital home but awarded the plaintiff
$221,677, an amount representing 100 percent of the
estimated net equity in the house as it stood before the
defendant’s failure to maintain and pay the mortgage
on the property caused a loss of equity of $162,339.89.
The parties’ remaining assets, which included personal
property, pension and retirement accounts, bank
accounts, and investment accounts, were awarded to
whichever party listed the asset on his or her financial
affidavit, with any joint accounts split equally.
The trial court ordered each party to be solely respon-
sible for the debts and liabilities listed on their respec-
tive financial affidavits. It also ordered the defendant
to maintain a ten year, term life insurance policy in the
amount of $2 million, naming the plaintiff as the sole
beneficiary. Finally, the trial court ordered the defen-
dant to pay 100 percent of the plaintiff’s legal, expert,
and professional fees, totaling $223,298, either in a lump
sum or by an agreed upon installment plan.1
The defendant appealed to the Appellate Court,
claiming that the trial court’s orders impermissibly dou-
ble counted his income by considering it for business
valuation purposes and also awarding alimony on the
basis of his income from those businesses. The Appel-
late Court agreed with the defendant and reversed the
judgment of the trial court as to its financial orders and
remanded the case for a new hearing on all financial
issues. See Oudheusden v. Oudheusden, 190 Conn. App.
169, 170, 209 A.3d 1282 (2019). The Appellate Court also
agreed with the defendant that the trial court’s financial
orders constituted an abuse of discretion in other ways.
See id., 182–85. The Appellate Court held that the trial
court did not consider all of the statutory criteria and
all of the evidence when it fashioned its financial orders.
Id., 182. In particular, the Appellate Court held that the
trial court, in ordering nonmodifiable lifetime alimony,
failed to consider the possibility that the defendant
could become ill, that his businesses could fail to thrive
through no fault of his own, or that, at some point in
time, he might want to retire. Id., 183. The Appellate
Court also disagreed with the trial court’s determination
that the plaintiff had limited earning potential and held
that the record failed to support this determination. See
id., 183–85.
The plaintiff petitioned for certification to appeal to
this court, arguing, first, that the Appellate Court misap-
plied this court’s double counting test by treating a
lump sum payment that was based on an asset’s value
as equivalent to the transfer of an ownership interest in
that asset. The plaintiff also claimed that the Appellate
Court improperly substituted its judgment for that of
the trial court in determining that the trial court abused
its discretion in crafting its financial orders. Specifi-
cally, the plaintiff argued that the Appellate Court mis-
characterized the trial court’s findings of fact regarding
her earning potential and that the Appellate Court could
properly have concluded that the defendant would con-
tinue to earn sufficient income indefinitely. Finally, the
plaintiff argued that it was within the trial court’s broad
discretion to award her lifetime, nonmodifiable
alimony.
We granted the plaintiff’s petition for certification,
limited to the following issues: (1) ‘‘Did the Appellate
Court correctly conclude that the trial court had errone-
ously engaged in ‘double dipping’ by awarding the plain-
tiff alimony from income generated by the defendant’s
businesses and also awarding the plaintiff a percentage
of those businesses in its division of property?’’ And
(2) ‘‘[d]id the Appellate Court correctly conclude that
the trial court had abused its discretion by failing to
enter financial orders that equitably divided the marital
estate?’’ Oudheusden v. Oudheusden, 332 Conn. 911,
912, 209 A.3d 1232 (2019). Additional facts will be set
forth as required.
I
Because the second certified issue is dispositive of
this appeal, we address it first, and, specifically, we
address one aspect of that issue: whether the Appellate
Court incorrectly held that the trial court’s permanent,
nonmodifiable alimony award constituted an abuse of
discretion. On this record, we agree with the Appellate
Court that the trial court abused its discretion.
In reviewing the alimony award at issue, we note that
the scope of our review of a trial court’s exercise of
its broad discretion in marital dissolution cases is lim-
ited to whether the court correctly applied the law and
reasonably could have concluded as it did. See, e.g.,
Misthopoulos v. Misthopoulos, 297 Conn. 358, 372, 999
A.2d 721 (2010); Greco v. Greco, 275 Conn. 348, 354,
880 A.2d 872 (2005); Krafick v. Krafick, 234 Conn. 783,
805, 663 A.2d 365 (1995). We make every reasonable
presumption in favor of the correctness of the trial
court’s action. Gabriel v. Gabriel, 324 Conn. 324, 336,
152 A.3d 1230 (2016); Krafick v. Krafick, supra, 805. It
is, however, well established that, in awarding alimony,
the trial court must take into account all of the statutory
factors enumerated in General Statutes § 46b-82 (a)2
and that its failure to do so constitutes an abuse of
discretion. See Greco v. Greco, supra, 360 (trial courts
must ‘‘consider all of the criteria enumerated in . . .
§ 46b-82’’). The trial court does not need to give each
factor equal weight or make express findings as to each
factor, but it must consider each factor. Id., 355; see
also Burns v. Burns, 41 Conn. App. 716, 726, 677 A.2d
971 (‘‘ ‘Although a specific finding . . . is not required,
the record must indicate the basis for the trial court’s
award.’ . . . Sufficient evidence must exist to support
the award, and the award may not stand if it is logically
inconsistent with the facts found or the evidence.’’
(Citation omitted.)), cert. denied, 239 Conn. 906, 682
A.2d 997 (1996); cf. Simmons v. Simmons, 244 Conn.
158, 180–81, 708 A.2d 949 (1998) (trial court abused its
discretion in failing to consider defendant’s age, which
was ‘‘significant’’ omission in court’s failure to award
defendant any alimony). In addition, it is a ‘‘long settled
principle that the defendant’s ability to pay is a material
consideration in formulating financial awards.’’ Greco
v. Greco, supra, 361. Finally, the trial court’s financial
orders must be consistent with the purpose of alimony:
to provide continuing support for the nonpaying spouse,
who is entitled to maintain the standard of living
enjoyed during the marriage as closely as possible. Hor-
nung v. Hornung, 323 Conn. 144, 162, 146 A.3d 912(2016); id., 163 (plaintiff’s efforts as homemaker, pri-
mary caretaker of parties’ children increased defen-
dant’s earning capacity at expense of her own earning
capacity, thus entitling her, postdissolution, to maintain
standard of living parties enjoyed during marriage to
extent possible); see Blake v. Blake, 211 Conn. 485, 498,
560 A.2d 396 (1989) (‘‘periodic . . . alimony is based
primarily upon a continuing duty to support’’). When
exercising its broad, equitable, remedial powers in
domestic relations cases, a court ‘‘must examine both
the public policy implicated and the basic elements of
fairness.’’ Greco v. Greco, supra, 363.
In this case, the alimony award was both permanent
and nonmodifiable. Permanent, or lifetime, alimony is
alimony payable in regular installments and terminates
upon the death of either spouse (and often upon the
nonpaying spouse’s remarriage or cohabitation).3 See
Black’s Law Dictionary (11th Ed. 2019) p. 92 (defining
‘‘alimony’’); cf. id. (defining ‘‘rehabilitative alimony,’’
which is durational in nature). Permanent alimony is
generally modifiable unless otherwise specified. See,
e.g., Eckert v. Eckert, 285 Conn. 687, 693, 941 A.2d 301(2008) (‘‘[n]onmodification provisions that are clear and
unambiguous . . . are enforceable’’). General Statutes
§ 46b-86 (a) permits a court to make an alimony award
that is not subject to modification. Id. An award may
be nonmodifiable as to duration or amount, or both.
See, e.g., Way v. Way, 60 Conn. App. 189, 197, 758 A.2d
884 (trial court improperly terminated award of house-
hold support pursuant to § 46b-86 (a) because award
was nonmodifiable as to duration, amount), cert.
denied, 255 Conn. 901, 762 A.2d 910 (2000). In this
case, the trial court took the unusual step of awarding
alimony that is both permanent and nonmodifiable as
to duration and amount.
The trial court has the authority to order lifetime, or
permanent (but modifiable), alimony awards. See Gen-
eral Statutes § 46b-86 (a) (authorizing permanent ali-
mony awards and providing for modification upon
substantial change in circumstances of either party);
see also Keenan v. Casillo, 149 Conn. App. 642, 663–64
and n.7, 89 A.3d 912 (upholding permanent alimony
award of $1200 per week to forty year old woman after
three year marriage), cert. denied, 312 Conn. 910, 93
A.3d 594 (2014). The defendant argues that, to incentiv-
ize the eventual self-sufficiency of the supported
spouse, courts have begun to disfavor permanent ali-
mony and favor time limited (also called rehabilitative)
alimony. Such a policy would not in any way limit the
trial court’s broad discretion to award permanent ali-
mony when appropriate. See Dan v. Dan, 315 Conn. 1,
11, 105 A.3d 118 (2014) (The court explained in dictum
that ‘‘courts have begun to limit the duration of alimony
awards in order to encourage the receiving spouse to
become self-sufficient. Underlying the concept of time
limited alimony is the sound policy that such awards
may provide an incentive for the spouse receiving sup-
port to use diligence in procuring training or skills nec-
essary to attain self-sufficiency.’’ (Internal quotation
marks omitted.)). Further, such a policy does not apply
when, as in the present case, the trial court found that
the supported spouse has limited earning potential due
to her age, health, and the number of years she had
been out of the workforce. Thus, we would not likely
hold that the award of permanent alimony is an abuse
of discretion under the facts of this case.
Although appellate level case law addressing a trial
court’s authority to make alimony awards nonmodifi-
able is sparse, the legislature has indisputably conferred
such authority. General Statutes § 46b-86 (a);4 see also
Brown v. Brown, 148 Conn. App. 13, 24–25, 84 A.3d 905,
cert. denied, 311 Conn. 933, 88 A.3d 549 (2014); Marshall
v. Marshall, 119 Conn. App. 120, 128–29, 988 A.2d 314,
cert. granted, 296 Conn. 908, 993 A.2d 467 (2010) (appeal
withdrawn November 18, 2010); Sheehan v. Balasic, 46
Conn. App. 327, 330–31, 699 A.2d 1036 (1997), appeal
dismissed, 245 Conn. 148, 710 A.2d 770 (1998); Burns
v. Burns, supra, 41 Conn. App. 724–25. As reflected in
the first sentence of § 46b-86 (a), the exercise of this
authority constitutes an exception to the general rule
of modifiability. General Statutes § 46b-86 (a) (‘‘[u]nless
and to the extent that the decree precludes modifica-
tion, any final order for the periodic payment of perma-
nent alimony . . . may, at any time thereafter, be
continued, set aside, altered or modified by the court
upon a showing of a substantial change in the circum-
stances of either party . . . .’’ (emphasis added)). We
have in fact recognized that the language of § 46b-86
‘‘suggests a legislative preference favoring the modifi-
ability of orders for periodic alimony.’’ Scoville v. Sco-
ville, 179 Conn. 277, 279, 426 A.2d 271 (1979). Although
a clear and unambiguous nonmodification provision is
enforceable; Eckert v. Eckert, supra, 285 Conn. 693; we
have explained that, ‘‘because of the volatile nature of
. . . personal circumstances, it has been recognized
judicially that ‘[p]rovisions [that] preclude modification
of alimony [or support] tend to be disfavored.’ ’’ Amodio
v. Amodio, 247 Conn. 724, 730, 724 A.2d 1084 (1999);
see also Cummock v. Cummock, 180 Conn. 218, 222–23,
429 A.2d 474 (1980); Lawler v. Lawler, 16 Conn. App.
193, 203, 547 A.2d 89 (1988), appeal dismissed, 212
Conn. 117, 561 A.2d 128 (1989).
As an exception to the general rule, it is therefore
even more important that, before entering a nonmodifi-
able alimony order, the trial court consider the statutory
factors it is obliged to balance. And it requires no cita-
tion to state that consideration of all statutory factors—
implicating ‘‘basic elements of fairness’’—is more criti-
cal still when the trial court’s alimony order is not only
nonmodifiable, but also permanent.
In the present case, in addition to ordering the defen-
dant to pay the plaintiff $452,000 (half the value of his
businesses) and $221,677 (representing the equity in
the marital home), to purchase a ten year, $2 million
life insurance policy for the plaintiff’s benefit, and to
assume all of the debt in the marital home, the trial court
ordered that the defendant pay the plaintiff $18,000
per month ($216,000 per year) in alimony. The court
specifically made this lifetime award ‘‘nonmodifiable
as to duration and amount’’: i.e., until one party dies,
however long in the future that eventuality might occur.
This provision of the award was clear and unambiguous.
The parties do not argue otherwise. Although we make
every reasonable presumption in favor of the correct-
ness of the trial court’s decision; Krafick v. Krafick,
supra, 234 Conn. 805; we agree with the Appellate Court
that a review of this alimony award in light of the record
compels the conclusion that the trial court failed to
consider all of the required statutory factors.
Specifically, on the basis of the evidence admitted at
trial, we are obliged to conclude that the trial court
either failed to consider the defendant’s age, health,
and future earning capacity, or failed to afford any sig-
nificant weight to these factors. See Hornung v. Hor-
nung, supra, 323 Conn. 164 (‘‘The trial court must also
look to the payor spouse’s financial situation, in addi-
tion to that of the recipient spouse. Specifically, the
trial court must consider the payor’s age, health, station,
occupation, amount and sources of income, earning
capacity, vocational skills, education, and employabil-
ity.’’ (Emphasis omitted.)). Although the trial court is
not required to make express findings regarding every
factor and need not give equal weight to each factor;
Greco v. Greco, supra, 275 Conn. 355; notably, the trial
court made express findings as to the plaintiff’s age,
health, and future earning potential without making
parallel findings regarding the defendant.
The plaintiff contends that the trial court’s orders
reflect that the court in fact considered these factors
but, in its discretion, did not find them compelling. She
argues, for example, that there was no evidence of the
defendant’s declining health or any likely future health
issues. But, although the defendant considers himself
to be in good health, the record reflects that he was
fifty-eight years of age at the time of trial and has a
history of alcohol abuse. His age itself could suggest
the likelihood of health issues at some point in the
future, let alone his alcohol abuse. Because the defen-
dant has no retirement savings and derives all of his
income from his two closely held businesses, this evi-
dence also relates to his future earning potential and,
therefore, his ability to comply with the court’s orders
because his health is directly tied to his ability to sustain
his current income.
To illustrate how the trial court’s permanent, non-
modifiable award could very well violate ‘‘basic elements
of fairness’’ underpinning the statutory factors, we need
only consider the not unlikely scenario in which both
parties survive into their eighties. It requires no evi-
dence to acknowledge that people can experience fail-
ing health as they advance into their later years. Yet, the
trial court’s award requires the defendant to continue
to pay the plaintiff $216,000 per year even after twenty
plus years of such payments and as both their health
and ability to work dwindle.
The plaintiff argues that the trial court had before it
enough evidence that the defendant’s ability to earn
income would not decrease over time, thereby support-
ing the alimony award. She notes that the defendant
testified that he has no plans to retire and that his work
requires no physical labor. The plaintiff also points to
evidence that the defendant’s businesses were pro-
jected to grow at a rate of 1.5 percent and that the
defendant thought his businesses would grow after the
divorce.5 Although the evidence certainly supports a
conclusion that the defendant’s businesses are likely
to thrive for some time, the evidence does not support
a finding that the businesses’ growth would necessarily
be perpetual. To support the nonmodifiable, lifetime
award in this case, and reflect a proper consideration
of the defendant’s future income and ability to comply
with the alimony award; see Greco v. Greco, supra, 275
Conn. 361; the trial court must have concluded that
the defendant’s earnings will either remain static or
continue to increase until his alimony obligation termi-
nates due to the death of either party or the plaintiff’s
remarriage or cohabitation. Such a conclusion ignores,
or certainly does not account for, ‘‘the volatile nature
of . . . personal circumstances’’ that has led this court
to disfavor ‘‘ ‘[p]rovisions [that] preclude modification
of alimony’ ’’; Amodio v. Amodio, supra, 247 Conn. 730;
and to conclude that the legislature has done the same.
See Scoville v. Scoville, supra, 179 Conn. 279 (§ 46b-86
‘‘suggests a legislative preference favoring the modifi-
ability of orders for periodic alimony’’).
The trial court ordered the defendant to pay $216,000
to the plaintiff annually in alimony, come what may. It
is clear from the record that the defendant’s ability to
comply with the court’s orders is contingent on his
continued ability to work. It was unreasonable for the
trial court to conclude that the defendant will have the
ability to comply with this monthly alimony obligation
for the rest of his life, however long that might be,
without some provision for modification should health
or economics prevent compliance. Thus, it is not clear
from the record whether the trial court considered the
defendant’s age, health, or earning potential when it
ordered lifetime alimony that was nonmodifiable as to
duration and amount. To the extent that the court did
consider these factors, it could not reasonably have
concluded on this record that the defendant would con-
tinue to earn, at a minimum, the same income for the
rest of his life.
It is of course possible he will have more than enough
resources to comply with this order for his entire life-
time. As the Appellate Court held, however, it consti-
tutes an abuse of discretion for the trial court to have
failed to contemplate the realistic possibility of the
defendant’s illness, disability, or the loss of income
through no fault of his own.6 See Oudheusden v. Oud-
heusden, supra, 190 Conn. App. 183–85. Without either
more detailed findings of fact or some indication in the
orders themselves that the trial court considered these
factors when fashioning the alimony award at issue,
we conclude that the trial court either did not consider,
or improperly considered, all of the statutory factors
as required by § 46b-82 (a).
This is not to say that permanent, nonmodifiable ali-
mony awards will always constitute an abuse of discre-
tion. Under some circumstances, such an award may
be appropriate when there is evidence that the paying
spouse can afford to pay the set amount, regardless of
future earning capacity. For example, nonmodifiable,
lifetime alimony might be appropriate when the paying
spouse’s income is guaranteed by a pension or when
the paying spouse’s income greatly exceeds the amount
of the alimony award. But nonmodifiable, lifetime ali-
mony awards are strong medicine. In fact, the parties
have not cited, and we have not found in our own
research, any case in which an appellate court has
reviewed a lifetime periodic alimony award that was
both (1) permanent and (2) nonmodifiable as to both
duration and amount. This dearth of case law alone
demonstrates the extraordinary nature of the trial
court’s approach.
We note that, in those cases in which a party has
unsuccessfully challenged an alimony award that was
either permanent (but modifiable) or nonmodifiable
(but of limited duration), the trial court clearly
accounted for the possibility that the paying spouse
could have a substantial change in income in the future.
See, e.g., Brown v. Brown, supra, 148 Conn. App. 23–24
(trial court placed caps on parties’ annual gross incomes
from employment, the attainment of which would not
be considered substantial change in circumstances that
would permit modification of nine year alimony award
of between $2000 and $2500 per week). Two of these
cases specifically anticipate the paying spouse’s volun-
tary retirement. See Marshall v. Marshall, supra, 119
Conn. App. 124 (defendant’s periodic alimony payments
would be reduced to $1 per year upon his retirement);
Burns v. Burns, supra, 41 Conn. App. 719 (alimony
award of $5666.67 per month could not be terminated
but was modifiable upon defendant’s retirement on
basis of change in circumstances).
Here, by contrast, there is insufficient evidence that
the trial court’s orders account for the possibility of a
substantial change in the defendant’s circumstances.
For this reason, the trial court’s award of $18,000 per
month in periodic alimony, permanent and nonmodifi-
able as to duration and amount, was an abuse of discre-
tion. Because our holding disturbs the trial court’s
carefully crafted mosaic of financial orders; see, e.g.,
Greco v. Greco, supra, 275 Conn. 354; we must uphold
the Appellate Court’s reversal of the trial court’s finan-
cial orders and remand of this case for a new hearing
on all financial issues.7
II
Having upheld the Appellate Court’s conclusion that
the trial court’s alimony award constituted an abuse of
discretion, we agree with the Appellate Court that the
case must be remanded to the trial court for a new
hearing on all financial issues. We nevertheless address
the plaintiff’s remaining claim as to which we also
granted certification to appeal because the issue of
double counting is almost certain to arise on remand.
See, e.g., State v. Chyung, 325 Conn. 236, 260 n.21, 157
A.3d 628 (2017) (reviewing court may resolve claims
that are not necessary for resolution of appeal but are
likely to arise during proceedings on remand).
The following additional facts are required for the
disposition of this issue. The trial court credited the testi-
mony of the plaintiff’s expert, Guberman, regarding the
fair market value of the defendant’s two businesses. The
plaintiff’s expert valued the businesses using a weighted
average of three valuation methods—the excess earn-
ings method, the capitalization of income method, and
the market approach. The excess earnings and capital-
ization of income methods—collectively referred to as
‘‘income methods’’ or ‘‘income approaches’’—use the
businesses’ incomes to determine their fair market
value.
A brief description of the two income methods of
valuation used by the plaintiff’s expert is necessary. In
his capitalization of income valuation, Guberman used a
multiyear weighted average of the businesses’ adjusted
pretax income to determine reasonable future cash
flow. The adjustments made included subtractions for
the ‘‘cash flows paid to or for the benefit of’’ the defen-
dant. The adjustments also accounted for the ‘‘reason-
able compensation payable to [the defendant] for the
part-time services he provides to the company.’’ In his
excess earnings valuation, which calculates fair market
value partly by considering the businesses’ goodwill,
Guberman found that goodwill accounts for 81 percent
of the overall value of Connecticut Computer & Con-
sulting Company, Inc., and 49 percent of the value of
WriteResult, LLC. In arriving at a value for the busi-
nesses, Guberman weighted both of these two income
methods at 40 percent, and weighted the market
approach at 20 percent. He concluded that the com-
bined fair market value of the defendant’s business
entities was $904,000 ($512,000 for Connecticut Com-
puter & Consulting Company, Inc.; $392,000 for WriteR-
esult, LLC). In its property distribution order, the trial
court awarded the plaintiff 50 percent of this fair market
value, or a $452,000 lump sum.
As discussed in part I of this opinion, the trial court’s
financial orders also awarded the plaintiff permanent,
nonmodifiable periodic alimony in the amount of
$18,000 per month, or $216,000 annually. The trial court
did not explain how it came to this number but presum-
ably it considered the appropriate statutory factors,
including the defendant’s gross annual income, which
the trial court found to be $550,000. See General Stat-
utes § 46b-82 (a) (listing factors trial court must con-
sider in awarding alimony). The trial court also did not
explain how it determined the defendant’s income.8 The
defendant requested an articulation as to whether the
trial’s court’s finding of his gross annual income consti-
tuted actual income earned from the two businesses or
his earning capacity. In response, the court clarified
that it based the defendant’s gross annual income on
the actual income from the defendant’s two businesses:
it did not make a finding of earning capacity. Addition-
ally, the trial court did not explain how the defendant’s
gross annual income factored into its determination of
alimony, but the defendant did not request a further
articulation.
We are asked to decide whether the trial court double
counted by awarding the plaintiff alimony from income
generated by the defendant’s businesses and also
awarding the plaintiff 50 percent of the fair market
value of those businesses. The Appellate Court held,
and the defendant maintains, that double counting is
generally prohibited and occurs when a court ‘‘take[s]
an income producing asset into account in its property
division and also award[s] alimony based on that same
income.’’ Oudheusden v. Oudheusden, supra, 190 Conn.
App. 178.
The defendant contends that the Appellate Court
properly considered it double counting to award the
plaintiff half the value of the businesses when the trial
court valued the businesses, in part, on the basis of the
companies’ future earnings, including the defendant’s
income, which it also considered in calculating the ali-
mony award. The plaintiff argues that double counting
did not occur here, because, according to our case law,
double counting can occur only when a party is ordered
to pay alimony from an income stream he or she no
longer has because it was distributed in the division
of property orders, not when, as here, the trial court
distributes a portion of the value of the businesses to
the plaintiff while the defendant retains 100 percent
ownership of those businesses. Because the defendant
retains full ownership of the businesses, the plaintiff
argues, he still has an income stream from which to
make the alimony payments that is separate and distinct
from the payment made to the plaintiff in the property
distribution. We conclude that the trial court did not
improperly double count the value of the defendant’s
businesses in the present case because any rule against
double counting does not apply when the distributed
asset is the value of a business and the alimony is based
on income earned from that business.
A
‘‘Courts and commentators have often disagreed . . .
as to what constitutes [double counting], whether [dou-
ble counting] ought to be prohibited as a matter of law,
and if not so prohibited, whether it is inequitable in
the circumstances of the particular divorce settlement.’’
Sampson v. Sampson, 62 Mass. App. 366, 374, 816
N.E.2d 999, review denied, 443 Mass. 1102, 820 N.E.2d
259 (2004). ‘‘Double counting’’ or ‘‘double dipping’’ are
not statutory terms: there is no legislative admonition
against double counting in Connecticut, and we there-
fore have no direct legislative guidance on the issue. The
concept instead is ultimately an equitable one. ‘‘Double
[counting] is a term used to describe the supposed
unfairness that results when property is awarded to a
spouse in equitable distribution but is also treated as
a source of income for purposes of calculating mainte-
nance or alimony.’’ (Internal quotation marks omitted.)
‘‘ ‘Double Dipping,’ ’’ 14 Equitable Distribution J., no. 5,
May, 1997, p. 49 (Double Dipping).
Concern about double counting arose in the context
of pensions and retirement benefits, because, ‘‘in the
case of pensions or other retirement assets, the asset
is the income that will eventually be distributed.’’
(Emphasis in original.) L. Morgan, ‘‘ ‘Double Dipping’:
A Good Theory Gone Bad,’’ 25 J. Am. Acad. Matrim. L.
133, 140–41 (2012). Proponents of a general prohibition
against double counting argue that it allows the alimony
recipient to dip twice into the same asset. Double Dip-
ping, supra, p. 49. Those who take the opposite view
point to the different purposes of property distribution
and spousal support argue that a strict prohibition on
double counting may prevent the awards from fulfilling
their distinct statutory purposes. See id.; see also Mickey
v. Mickey, 292 Conn. 597, 615, 974 A.2d 641 (2009)
(‘‘[d]espite their close relationship . . . the purposes
and operation of [General Statutes] §§ 46b-81 and 46b-
82 are distinct and, to an extent, complementary,
applying under different circumstances for different
reasons’’). ‘‘[T]he purpose of postdissolution property
division is to unscramble the ownership of property’’
of each spouse; (internal quotation marks omitted) id.,
614; whereas the purpose of alimony ‘‘is to recognize
the obligation of support that spouses assume toward
each other by virtue of the marriage.’’ (Internal quota-
tion marks omitted.) Id., 615–16.
This court has recognized that it is not double count-
ing for the trial court to consider the same asset in both
the property distribution and, as allocated, for purposes
of determining spousal support. See Krafick v. Krafick,
supra, 234 Conn. 804–805 n.26.9 Contra N.J. Stat. Ann.
§ 2A:34-23 (b) (14) (West Supp. 2020) (‘‘[w]hen a share
of a retirement benefit is treated as an asset for pur-
poses of equitable distribution, the court shall not con-
sider income generated thereafter by that share for
purposes of determining alimony’’). However, this court
has suggested that it would be double counting for
income from property that was awarded to the nonpay-
ing spouse—and is therefore no longer available to the
paying spouse—to be awarded to the nonpaying spouse
in the alimony award. Although this court has never so
held, our case law strongly suggests that we would
prohibit this type of double counting in the pension
context. See Krafick v. Krafick, supra, 804–805 n.26.
Notably, this court never has been asked to determine
if this double counting rule would apply when the asset
at issue is the value of a business, as in the present case.
A brief discussion of double counting and our own
case law on the issue illustrates the need for this court
to provide additional guidance, specific to businesses.
B
In Krafick v. Krafick, supra, 234 Conn. 783, this court
implicitly rejected a general prohibition on double
counting when it held that the trial court improperly
assigned the defendant’s pension no value in the prop-
erty distribution, even though the trial court acknowl-
edged that the pension was an asset of the marriage. Id.,805–806. The court in Krafick rebuffed the ‘‘defendant’s
contention that to consider vested [pension] benefits
for purposes of equitable distribution and also, as allo-
cated, as a source of alimony constitutes impermissible
‘double [counting].’ ’’ (Emphasis added.) Id., 804–805
n.26. The court went on to explain that ‘‘[o]ur alimony
statute expressly provides that ‘[i]n determining
whether alimony shall be awarded, and the duration
and amount of the award, the court . . . shall consider
. . . the award, if any, which the court may make pursu-
ant to [§] 46b-81 [in distributing property].’ . . . Rely-
ing on the pension benefits allocated to the employee
spouse under § 46b-81 as a source of alimony would
be improper only to the extent that any portion of the
pension assigned to the nonemployee spouse [in the
distribution of property] was counted in determining
the employee spouse’s resources for purposes of ali-
mony.’’ (Citation omitted.) Id., 805 n.26. Thus, this court
has suggested that it would recognize a more limited
prohibition on double counting in the pension context,
but there was no double counting in Krafick.
This court also has considered the application of the
double counting rule in the context of bank accounts,
investment accounts, vested stock, stock options, and
stock in a closely held business. For example, in Greco,
we reviewed the trial court’s order requiring the defen-
dant to transfer the entirety of his stock in a business,
or the value of that stock, to the plaintiff and also
awarding the plaintiff alimony that was based in part
on the salary the defendant earned as an employee of
the same business. Greco v. Greco, supra, 275 Conn.
352, 361. Although we did not analyze why the rule
against double counting should extend to the awarding
of stock, we concluded that no double counting
occurred because, notwithstanding that ‘‘the defen-
dant’s salary from [the business] appear[ed] to have
been his main source of income . . . the stock itself
did not constitute a significant resource or source of
income and the trial court did not attribute any such
income [e.g., cash dividends] to the defendant in
determining his income for the purpose of calculating
alimony.’’ (Citation omitted.) Id., 357 n.8.10
Similarly, in O’Brien v. O’Brien, 326 Conn. 81, 161
A.3d 1236 (2017), the assets at issue included bank and
investment accounts, as well as vested stock and stock
options in the company at which the plaintiff was
employed but was not an owner. Id., 86–87. The court
explained the general rule against double counting as
follows: ‘‘A trial court’s alimony award constitutes
impermissible double [counting] only if the court con-
siders, as a source of the alimony payments, assets
distributed to the party receiving the alimony. . . . [I]f
a trial court assigns a certain asset—a bank account,
for example—to the party receiving alimony, it cannot
consider that same bank account as a source of future
alimony payments because the account has not been
distributed to the party paying the alimony.’’ (Citations
omitted; emphasis in original.) Id., 120–21. Once again,
though, we determined that there was no double count-
ing because the assets the plaintiff would use to pay
the alimony award were all awarded to the plaintiff
himself. Id.11
C
As noted, this court never has been asked to deter-
mine whether the rule against double counting applies
when the value of a business is distributed, as in the
present case. In concluding that the trial court engaged
in double counting in this case, the Appellate Court
cited one if its own cases for the ‘‘general principle
. . . that a court may not take an income producing
asset into account in its property division and also
award alimony based on that same income.’’ Oudheus-
den v. Oudheusden, supra, 190 Conn. App. 178, citing
Callahan v. Callahan, 157 Conn. App. 78, 95, 116 A.3d
317, cert. denied, 317 Conn. 913, 116 A.3d 812 (2015),
and cert. denied, 317 Conn. 914, 116 A.3d 813 (2015). The
Appellate Court’s statement of this ‘‘general principle’’
sweeps too far, however, and, in some contexts, is at
odds with this court’s holding in Krafick and with the
text of §§ 46b-81 and 46b-82.
For the proposition quoted previously, the Appellate
Court relied on dictum from its own precedent in Cal-
lahan. The language in Callahan is dictum because the
parties in that case agreed to the application of this
general principle and because the principle ultimately
did not apply—the court in Callahan determined that
the alimony award in that case was based on the defen-
dant’s earning capacity, not his actual income from the
business. Callahan v. Callahan, supra, 157 Conn. App.
95–97. In addition, the court in Callahan derived this
‘‘general principle’’ from Eslami v. Eslami, 218 Conn.
801, 815, 591 A.2d 411 (1991), a decision that predates
Krafick. See Callahan v. Callahan, supra, 95–97. In
Eslami, this court said, in dictum, that ‘‘[a] valuation
method that does not differentiate between the goodwill
of the practice as a saleable entity and the practitioner’s
own earning power as enhanced by such goodwill may
well result in counting the same basis for a financial
award in dissolution cases twice, once as an asset of his
estate subject to allocation and again, as a component
of his earning capacity forming the basis for alimony.’’
(Emphasis added.) Eslami v. Eslami, supra, 815.
Because the court in Eslami was not required to deter-
mine whether the double counting rule applied to the
value of businesses, this statement was made without
considering the unique characteristics of businesses. In
addition, the dictum from Eslami does not apply to the
present case because, here, the trial court made no
finding of fact as to the defendant’s earning capacity
and the defendant did not request articulation as to
how the trial court determined his earning capacity.
Therefore, we are not persuaded that the dictum in
Eslami supports extending the rule to the valuation of
businesses. It is clear from this overview of Connecti-
cut’s double counting jurisprudence that the rule is
not well developed and never has been applied to the
business context at issue here.
Because this court never has clearly extended our
case law regarding double counting to the valuation of
businesses, we look to case law from other jurisdictions
for guidance on how this rule applies to businesses.
The defendant argues that double counting is implicated
because the businesses were valued using a method
that was based on income for property distribution
purposes and the alimony award was based on the
income from those businesses.12 Yet, every jurisdiction
that has considered the issue has concluded that the
double counting rule does not apply when the asset at
issue is the value of a business, even when the business’
fair market value was determined by an income method
of valuation. See Steneken v. Steneken, 183 N.J. 290,
301–302, 873 A.2d 501 (2005) (‘‘We find no inequity in
the use of the individually fair results obtained due to
the use of an asset valuation methodology normalizing
salary in an [ongoing] close corporation for equitable
distribution purposes, and the use of actual salary
received in the calculus of alimony. The interplay of
those two calculations does not constitute ‘double
counting.’ ’’); Keane v. Keane, 8 N.Y.3d 115, 121, 861
N.E.2d 98, 828 N.Y.S.2d 283 (2006) (‘‘We do not see why
an inquiry as to double counting should depend on the
valuation method used. After all, any valuation of an
[income producing] property will necessarily take into
account the [income producing] capacity of that prop-
erty. To prevent any income derived from any [income
producing] property from being ‘double counted’
would, therefore, significantly limit the trial court’s con-
siderable discretion in equitably distributing marital
property and awarding maintenance.’’); McReath v.
McReath, 335 Wis. 2d 643, 674–76, 800 N.W.2d 399 (2011)
(‘‘when determining maintenance . . . counting
income from income earning assets [assigned to a
spouse in property division] will typically not implicate
double counting’’ (citations omitted; footnotes omit-
ted)). These jurisdictions treat the income approach to
valuation as simply a tool to determine a business’ fair
market value, just like the market approach and the
asset approach.
In a case with strong similarities to the present
appeal, the New Jersey Supreme Court explained the
rationale behind this rule particularly well. In Steneken,
the asset was a closely held business of which the
defendant was the sole shareholder. Steneken v. Stene-
ken, supra, 183 N.J. 293–94. The defendant’s expert in
Steneken used the capitalization of earnings method to
value the business. Id., 298. The trial court, in its prop-
erty distribution, awarded 35 percent of this value to
the plaintiff. Steneken v. Steneken, 367 N.J. Super. 427,
432, 843 A.2d 344 (App. Div. 2004), aff’d as modified,
183 N.J. 290, 873 A.2d 501 (2005). As in the present
case, the defendant was awarded sole ownership of the
business—i.e., the court did not order that the parties
would own the business jointly. Id. The plaintiff also
was awarded alimony that was based on the defendant’s
actual income from the business. Id. The defendant
argued that it was double counting to use his actual
income to calculate the alimony award because his
excess earnings beyond his normalized income were
also considered in valuing the business, of which the
plaintiff received a share. Steneken v. Steneken, supra,
183 N.J. 294–95; Steneken v. Steneken, supra, 367 N.J.
Super. 433.
The New Jersey Supreme Court disagreed. ‘‘Princi-
ples of fairness that properly account for the dichotomy
between alimony, on the one hand, and equitable distri-
bution, on the other, are what inform our analysis.’’
Steneken v. Steneken, supra, 183 N.J. 300. ‘‘Because
we embrace the premise that alimony and equitable
distribution calculations, albeit interrelated, are sepa-
rate, distinct, and not entirely compatible financial exer-
cises, and because asset valuation methodologies
applied in the equitable distribution setting are not con-
gruent with the factors relevant to alimony considera-
tions, we conclude that the circumstances here present
a fair and proper method of both awarding alimony and
determining equitable distribution.’’ Id., 301. ‘‘Where,
as here, the major marital asset is a [closely held] corpo-
ration and the supporting spouse has determined what
his or her income was during the marriage, the sup-
ported spouse is entitled, [postdivorce], both to alimony
sufficient to maintain a reasonably comparable lifestyle
and to a fair division of the asset. We do not agree
with [the] defendant’s view that this analysis effects a
‘windfall’ to the supported spouse. Trial courts remain
free to consider, in the exercise of their discretion and
in accordance with the statutory guidelines, the fair and
proper quantum of alimony and equitable distribution
attendant to each case before them.’’ (Footnote omit-
ted.) Id., 303–304.
In addition, the New Jersey Supreme Court pointed
out a logical flaw at the core of the argument that it is
improper double counting to use an income method of
valuation on the property distribution side and actual
income on the alimony side of the equation. ‘‘[T]he
[d]efendant mistakenly equates the statutory and deci-
sional methodology applied in the calculation of ali-
mony with a valuation methodology applied for
equitable distribution purposes that requires that reve-
nues and expenses, including salaries, be normalized
so as to present a fair valuation of a going concern. . . .
[T]he proper issue is whether, under the circumstances,
the alimony awarded and the equitable distribution
made are, both singly and together, fair and consistent
with the statutory design.’’ Id., 301.
D
We are persuaded by our sister courts that have
addressed the issue and concluded that it is not double
counting for a trial court to award a spouse a lump sum
representing a portion of the value of a business and
also award the spouse alimony that is based on the
paying spouse’s actual income from that business. In
the present case, that is precisely what happened.
Therefore, we conclude that it was not improper for
the trial court to base the property distribution on Gub-
erman’s valuation of the defendant’s businesses while
also considering the defendant’s income from those
businesses in its alimony award.
Nevertheless, trial courts should—consistent with
our statutory scheme—consider all required statutory
factors and ensure that each award is consistent with
its respective statutory purpose and that the awards as
a whole are fair and equitable. This consideration might
include ensuring that the property distribution of a por-
tion of a business’ value to the nonowning spouse does
not unfairly reduce the paying spouse’s ability to earn
income from that business (resulting in the undercapi-
talization of the business, for example). As with any
alimony or property distribution award, reviewing
courts may consider how a business has been awarded
(i.e., divided) in determining whether the alimony and
distribution awards serve their statutory purposes and
whether the award as a whole is fair. See Greco v. Greco,
supra, 275 Conn. 354–56, 362–63 (discussing appellate
review of trial court’s financial orders); see also Stene-
ken v. Steneken, 183 N.J. 302 (second and final step in
inquiry is whether result as whole is ‘‘fair under the
circumstances and congruent with the standards set
forth in [the alimony statute] and [the equitable distribu-
tion statute]’’); McReath v. McReath, supra, 335 Wis. 2d
677 (‘‘the focus should be on fairness, not rigid [double
counting] rules’’). In the present case, because we
already have determined that the trial court’s alimony
award was an abuse of discretion, we need not under-
take consideration of whether the award as a whole is
fair. The trial court will have to conduct a new hearing
on financial issues and, among other things, will be
guided by the principles outlined in this opinion.
The judgment of the Appellate Court is affirmed with
respect to its determination regarding the trial court’s
financial orders, the judgment of the Appellate Court
is reversed with respect to its determination that the
trial court improperly double counted the value of the
defendant’s businesses for purposes of the property
division and alimony awards, and the case is remanded
to the Appellate Court with direction to remand the case
to the trial court for a new hearing on all financial issues.
In this opinion the other justices concurred.
* April 27, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The defendant does not challenge the award of legal, expert, or profes-
sional fees to the plaintiff but does cite this award as evidence of his inability
to comply with the trial court’s other financial orders. The court also made
the defendant responsible for any outstanding taxes for the years 1985
through 2015, as well as for any tax liability for 2016. The court did not
expressly find the amount of the debts, liabilities, and taxes listed.
2
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.’’
3
The terms ‘‘permanent’’ and ‘‘lifetime’’ are somewhat imprecise given that
it is common for permanent alimony awards to include limited termination
provisions such as those we have described. Nonetheless, these awards
are of indefinite duration unless they are terminated by a triggering event
specified in the awards.
4
General Statutes § 46b-86 (a) provides in relevant part: ‘‘Unless and to
the extent that the decree precludes modification, any final order for the
periodic payment of permanent alimony or support, an order for alimony
or support pendente lite or an order requiring either party to maintain life
insurance for the other party or a minor child of the parties may, at any
time thereafter, be continued, set aside, altered or modified by the court
upon a showing of a substantial change in the circumstances of either party
. . . . By written agreement, stipulation or decision of the court, those
items or circumstances that were contemplated and are not to be changed
may be specified in the written agreement, stipulation or decision of the
court. . . . If a court, after hearing, finds that a substantial change in circum-
stances of either party has occurred, the court shall determine what modifica-
tion of alimony, if any, is appropriate, considering the criteria set forth in
section 46b-82.’’
5
In support of this proposition, the plaintiff cites Guberman’s valuation
report and asserts, in a parenthetical in her brief, that the defendant’s
businesses have a projected growth rate of 1.5 percent. The valuation report
does not explain how the growth rate was calculated, but, like many aspects
of closely held businesses, future growth rates are speculative and unpredict-
able, and, therefore, the defendant’s income from these businesses is specu-
lative and unpredictable as well.
6
The Appellate Court also held that the trial court’s failure to consider
the defendant’s voluntary retirement in fashioning its financial orders consti-
tuted further evidence of an abuse of discretion. See Oudheusden v. Oudheu-
sden, supra, 190 Conn. App. 183–85. Because we hold that the trial court
abused its discretion by failing to consider, or that it improperly considered,
the required statutory factors and the possibility that an involuntary
decrease in earning capacity could affect the defendant’s ability to comply
with the financial orders for the rest of his life, we do not reach the issue
of whether denying the defendant a voluntary retirement itself would render
the alimony award an abuse of discretion.
7
Because we hold that the trial court improperly failed to consider or
properly apply the factors in § 46b-82 pertaining to the defendant and his
ability to comply with the financial orders, we do not reach the plaintiff’s
argument that the Appellate Court incorrectly reweighed the evidence or
mischaracterized the trial court’s findings as to his earning capacity.
8
It appears from the record that the trial court based the defendant’s gross
annual income on an opinion contained in Guberman’s report. Guberman
suggested in the report that, because the defendant has sole control of the
earnings and cash flows of both businesses, the trial court should include
in the defendant’s actual income all of his actual compensation (between
$323,369 and $394,319) as well as the net earnings retained by the businesses
at year end, which Guberman calculated to total $540,000 annually (including
the defendant’s actual compensation). Therefore, it appears that the trial
court included discretionary cash flow in the income determination, but it
is unclear exactly how the trial court arrived at the slightly higher figure
of $550,000. Once again, though, the defendant does not challenge any
factual finding.
9
Courts in other jurisdictions that have considered the issue have declined
to extend the prohibition to situations in which the asset at issue is the
value of a business. See Double Dipping, supra, p. 54.
10
The defendant relies on Greco, arguing that, ‘‘[i]n this case, the trial court
obviously made that Greco attribution by linking the defendant’s income to
the businesses in its clarification order.’’ Although the facts here might
appear to satisfy the test for double counting laid out in Greco (i.e., the
businesses themselves did constitute a significant resource or source of
income), this case is distinguishable because, as we will discuss more fully,
the value of a business asset is not the same as stock.
11
The Appellate Court has found double counting on only one occasion.
In Lynch v. Lynch, 135 Conn. App. 40, 43 A.3d 667 (2012), the plaintiff had
published a book. Id., 43. The Appellate Court held that the trial court double
counted by awarding the defendant 30 percent of the value of the plaintiff’s
unsold books as well as 30 percent of all income the plaintiff would receive
in the future from the sale of the same books. Id., 43–44, 53–54. Both of
these awards were part of the court’s property distribution under § 46b-81.
Id., 52. In the present case, by contrast, the defendant does not claim that
the same asset was distributed twice under § 46b-81. Rather, the question
presented in this case—whether the same income was counted both for
alimony and property distribution purposes—is clearly distinguishable.
The Appellate Court has considered and rejected double counting argu-
ments on three other occasions. In Callahan v. Callahan, 157 Conn. App.
78, 116 A.3d 317, cert. denied, 317 Conn. 913, 116 A.3d 812 (2015), and cert.
denied, 317 Conn. 914, 116 A.3d 813 (2015), and McRae v. McRae, 129 Conn.
App. 171, 20 A.3d 1255 (2011), the Appellate Court held that double counting
had not occurred when the alimony award was based on the paying spouse’s
earning capacity. Callahan v. Callahan, supra, 97; McRae v. McRae, supra
188. And, in Utz v. Utz, 112 Conn. App. 631, 963 A.2d 1049, cert. denied,
291 Conn. 908, 969 A.2d 173 (2009), the Appellate Court rejected a double
counting argument when—unlike in the present case—no portion of the
paying spouse’s business or its value was transferred to the payee spouse.
Id., 639–40.
12
To the extent that the businesses were valued using the market
approach, double counting is not implicated because it does not use income
to calculate fair market value. See L. Morgan, supra, 25 J. Am. Acad. Matrim.
L. 145 (‘‘no one would argue that valuing a business using the market
approach results in double [counting]’’).