Callahan v. Callahan

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JILL GILBERT CALLAHAN v. JAMES CALLAHAN
(AC 34936)
(AC 36617)
Beach, Mullins and Schaller, Js.
Argued December 10, 2014—officially released May 5, 2015
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Munro, J.)
Campbell D. Barrett, with whom were Jon T.
Kukucka and, on the brief, Kathleen E. Scelfo, for the
appellant in AC 34936 and the appellee in AC 36617
(defendant).
Daniel J. Klau, with whom, on the brief, was Frank
A. Sherer III, for the appellee in AC 34936 and the
appellant in AC 36617 (plaintiff).
Opinion
SCHALLER, J. These two appeals arise out of the
judgment dissolving the marriage between the defen-
dant, James Callahan, and the plaintiff, Jill Gilbert Cal-
lahan, and from the court’s decision granting the
defendant’s motion to open the dissolution judgment
and entering substitute financial orders based upon its
finding that the plaintiff’s postjudgment misconduct sig-
nificantly reduced the value of companies owned by
the parties.1
In AC 36617, the plaintiff claims that the court lacked
jurisdiction to open the original May, 2012 judgment of
dissolution.2 In AC 34936, as amended, the defendant
claims that (1) the court improperly awarded the plain-
tiff alimony from income generated by the companies
plus a portion of the value of the companies, constitut-
ing impermissible ‘‘double dipping,’’ and (2) the court
abused its discretion by ordering him to purchase the
plaintiff’s interest in the companies.3 We agree with the
plaintiff’s claim that the court did not have authority to
open the dissolution judgment and, accordingly, reverse
the judgment entering substitute financial orders and
remand the case with direction to reinstate the May,
2012 financial orders. We otherwise affirm the dissolu-
tion judgment.
The following facts and procedural history are rele-
vant to our resolution of the present appeals. The par-
ties were married in 1987, and raised three children,
all adults at the time of trial. The parties are college
graduates and, from 1981 through August, 1992, main-
tained employment in New York City and London. Once
the parties’ third child was born, the plaintiff stopped
working outside of the home and remained a full-time
homemaker until 1994, when the parties decided to
start their own business.
In 1995, the parties created three companies: Pental-
pha Group, LLC, Pentalpha Funding, LLC, and Pental-
pha Capital, LLC (companies). The plaintiff owns 51
percent of each of the three companies, and the defen-
dant has a 49 percent ownership interest in each entity.
A related fourth entity, Pentalpha Surveillance, LLC, is
owned entirely by the defendant. In September, 2009,
the plaintiff formally resigned from her position with
the companies. The parties separated at this time, and
the plaintiff moved out of the marital home with the
parties’ children. The plaintiff then filed a complaint
seeking a dissolution of her marriage to the defendant,
alleging that their marriage had broken down irre-
trievably.
The matter was tried to the court, Munro, J., on
various days between March 1, 2012, and March 14,
2012. During the dissolution proceedings, Barry S.
Sziklay, the plaintiff’s forensic valuation expert, testi-
fied that, as of June 30, 2011,4 the value of the companies
was not less than $11,747,660. Closing arguments were
heard on April 3, 2012. On April 16, 2012, the plaintiff
made a single prejudgment withdrawal in the amount
of $157,440 from a company bank account.
On May 8, 2012, the court, by way of memorandum
of decision, rendered judgment dissolving the parties’
marriage on the ground of irretrievable breakdown. The
court concluded that ‘‘the valuation methodology and
adjustments utilized by [Sziklay] represent a sound and
reasonable approach to valuation.’’ The court, accord-
ingly, adopted the expert opinion of Sziklay as to the
value of the companies.
The court also issued financial orders in connection
with the dissolution of the parties’ marriage. At the time
the court issued its financial orders, the companies
retained $6 million in cash assets, which had accrued
to this level since the parties’ member distributions in
May, 2010.5 The court ordered that the plaintiff transfer
to the defendant all of her right, title, and interest to
the companies within sixty days. Coincident therewith,
the court ordered the defendant to sign a promissory
note secured by the stock and accounts of the compa-
nies for $6 million payable to the plaintiff, at the rate
of $1 million per year for six years. The order further
provided that, if the defendant elected to sell the compa-
nies within six months, then he was to pay the plaintiff
55 percent of the sale proceeds, and the plaintiff was
to receive no less than $4 million from the sale. Execu-
tion of the financial orders regarding the companies was
stayed pending resolution of the defendant’s appeal.
See Practice Book § 61-11 (a).6 Subsequently, the court,
Munro, J., denied the plaintiff’s motion for termination
of stay of execution. See Practice Book § 61-11 (e).
Additionally, the court ordered the defendant to pay
the plaintiff $60,000 per month in alimony until the
death of either party, the remarriage of the plaintiff, or
as determined by the court, pursuant to General Stat-
utes § 46b-86 (b).7
On May 19, 2012, the plaintiff made two postjudgment
withdrawals from company accounts in the amounts of
$473,490.81 and $1842. The plaintiff’s three withdrawals
from the companies’ bank accounts totaled $632,772.81.
All of these sums were deposited into the plaintiff’s
personal bank account.
On June 13, 2012, the defendant filed a postjudgment
motion for contempt, alleging that the plaintiff had
failed to comply with the court’s orders. On June 15,
2012, the defendant filed a second motion to open the
judgment of dissolution and attendant financial orders
based on the plaintiff’s unauthorized prejudgment and
postjudgment withdrawals from company accounts.8
On August 17, 2012, the defendant filed AC 34936 chal-
lenging the May, 2012 dissolution judgment and atten-
dant financial orders as well as the court’s subsequent
decisions denying his first motion to open the dissolu-
tion judgment and his motion to reargue. See footnote
8 of this opinion.
On November 6, 2012, the court granted the second
motion to open, reasoning that ‘‘[i]t would be patently
unfair and inequitable to leave the court’s judgment
orders in place if the defendant’s unrebutted assertion
of substantial injury to the [companies] has resulted
from the plaintiff’s unilateral and inappropriate appro-
priation of [company] funds for noncorporate pur-
poses.’’ The court did not find the plaintiff in contempt,
but it ordered her to ‘‘replace [by November 27, 2012]
all the moneys removed by her, in good funds, to the
account(s) from which the funds were removed, plus
5 percent simple interest from the date of taking to the
date of repayment.’’ The court ordered an evidentiary
hearing to ‘‘be held, after court-supervised appropriate
discovery, to provide such evidence as is necessary for
the court to . . . enter new financial orders, as may
be necessary, that take into account the plaintiff’s unau-
thorized withdrawal of funds from [the companies].’’
The court also determined ‘‘that since other conduct
of the plaintiff had ensued regarding the companies,
the hearing would include all such conduct adversely
affecting the value of the businesses and the resulting
financial orders up until the actual date of the hearing.’’
The evidentiary hearing took place over several dates
in November, 2013. The court considered, inter alia, the
following actions by the plaintiff: (1) her postjudgment
failure to properly replace the funds to the company
account until November 12, 2013, ‘‘a year after they
were ordered returned’’; (2) holding herself out as presi-
dent of the companies via her business LinkedIn net-
working account to communicate postjudgment with a
customer of the companies; (3) her refusal to approve
a minor change to an operating agreement and her
refusal to sign a prepared affidavit of compliance
regarding subpoenas addressed to the companies; (4)
her decision to bring a federal lawsuit against the audi-
tor of the companies; (5) her provision of confidential
information regarding the companies to her counsel
representing her in the federal lawsuit and to her life
coach; and (6) her postjudgment attempt to access com-
pany account information at Chase Bank, which
resulted in the bank freezing the companies’ accounts.
The court excluded evidence offered by the plaintiff
that pertained to how the defendant’s conduct affected
the diminution in value of the companies.
At the evidentiary hearing, both parties presented
expert testimony as to whether the plaintiff’s conduct
adversely affected the value of the companies. The
defendant’s expert, Mark Harrison, a certified public
accountant and an attorney, opined as to the current
value of the companies, as extrapolated from the court’s
findings to the date of the hearing. Harrison relied upon
the court’s finding in its May, 2012, decision that the
report authored by Sziklay was credible. Alan
Schachter, the plaintiff’s expert forensic certified public
accountant, was retained to rebut the opinions of the
defendant’s expert, but not to provide an opinion as to
the value of the companies.
In a written memorandum of decision dated February
25, 2014, the court found that the value of the companies
had been significantly reduced to $6,336,734 as a result
of the plaintiff’s actions. The court specifically found
that: ‘‘[The defendant’s] ability to control and manage
[the companies] has been substantially undermined by
the continuous deleterious conduct of the plaintiff.’’ In
arriving at the new valuation, the court found that the
reduction in value was ‘‘wholly related to all of the
combined conduct of the plaintiff . . . .’’ The new valu-
ation reflects a $5,410,926 diminution in the valuation
of the companies as compared to the June, 2011, figure
of $11,747,660.
The court concluded further that a new trial on the
financial orders was not necessary, and that the appro-
priate remedy was to issue substitute financial orders.9
The substitute financial orders were entered ‘‘in lieu of
and replace[d] all of the orders in the original memoran-
dum of decision regarding ownership of [the compa-
nies] and payment therefor.’’ The court ordered, inter
alia, a reduction in the amount that the plaintiff was to
receive for her interest in the companies from $4 million
to $3 million. The award of interest in the companies to
the plaintiff was ‘‘made contingent on her cooperating
behavior so that the defendant is able to realize either
the income or the value that [the companies] can pro-
duce to pay the plaintiff her court ordered share.’’
On March 7, 2014, the plaintiff filed AC 36617, chal-
lenging the court’s decision opening the dissolution
judgment and modifying the financial orders regarding
the companies. On April 7, 2014, the defendant amended
AC 34936 to additionally challenge the court’s opening
of the judgment and its modification of the financial
orders regarding the companies.10 Additional facts will
be set forth as necessary.
I
AC 36617
The plaintiff claims that the court lacked jurisdiction
to open the May, 2012 dissolution judgment to revalue
the companies based on postjudgment misconduct by
the plaintiff. The plaintiff specifically argues that ‘‘a
trial court does not have jurisdiction to open a judgment
based on a party’s postjudgment conduct.’’ We agree.
We first address the applicable standard of review.
‘‘Whether a court retains continuing jurisdiction over
a case is a question of law subject to plenary review.
. . . Whether a court properly exercised that authority,
however, is a separate inquiry that is subject to review
marks omitted.) Lehn v. Marconi Builders, LLC, 120
Conn. App. 459, 462–63, 992 A.2d 1137 (2010).
A motion to open a judgment is governed by General
Statutes § 52-212a and Practice Book § 17-4. Section
52-212a provides in relevant part: ‘‘Unless otherwise
provided by law and except in such cases in which the
court has continuing jurisdiction, a civil judgment or
decree rendered in the Superior Court may not be
opened or set aside unless a motion to open or set aside
is filed within four months following the date on which
it was rendered or passed. . . .’’ Practice Book § 17-4
states essentially the same rule.11 As the court recog-
nized in its November, 2012 memorandum of decision,
‘‘neither § 52-212a nor Practice Book § 17-4 specify the
standard for opening a judgment within four months
of its rendering.’’ Thus, the basis on which our trial
courts can permissibly open a judgment is limited by
legal interpretation of the relevant statutes. Our courts,
recognizing the important consideration of finality of
judgments, have limited the circumstances in which a
court may open a judgment within four months of its
rendering to where there is ‘‘a good and compelling
reason for its modification or vacation.’’ (Internal quota-
tion marks omitted.) Cockayne v. Pilon, 114 Conn. App.
867, 868–69, 971 A.2d 732 (2009).
Before reaching the parties’ arguments on appeal, we
note that our courts have no inherent power to transfer
property from one spouse to another in a marital disso-
lution proceeding. See Rubin v. Rubin, 204 Conn. 224,
228–29, 527 A.2d 1184 (1987). Instead, that power rests
upon an enabling statute, General Statutes § 46b-81 (a).
Section 46b-81 (a) provides in relevant part: ‘‘At the
time of entering a decree . . . dissolving a marriage
. . . the Superior Court may assign to either spouse all
or any part of the estate of the other spouse. . . .’’
Critically, under § 46b-81 (a), ‘‘the court does not retain
continuing jurisdiction over any portion of the judgment
that constitutes an assignment of property.’’ (Internal
quotation marks omitted.) Schorsch v. Schorsch, 53
Conn. App. 378, 385, 731 A.2d 330 (1999). The court’s
authority to distribute the personal property of the par-
ties must be exercised, if at all, at the time that it renders
judgment dissolving the marriage. ‘‘Therefore, a prop-
erty division order generally cannot be modified by
the trial court after the dissolution decree is entered,
subject only to being opened within four months from
the date the judgment is rendered under . . . § 52-
212a.’’ (Internal quotation marks omitted.) Id.
‘‘Although the court does not have the authority to
modify a property assignment, a court, after distributing
property, which includes assigning the debts and liabili-
ties of the parties, does have the authority to issue
postjudgment orders effectuating its judgment.’’ (Inter-
nal quotation marks omitted.) Fewtrell v. Fewtrell, 87
Conn. App. 526, 531, 865 A.2d 1240 (2005). This court has
explained the difference between postjudgment orders
that modify a judgment rather than effectuate it. ‘‘A
modification is [a] change; an alteration or amendment
which introduces new elements into the details, or can-
cels some of them, but leaves the general purpose and
effect of the subject-matter intact. . . . In contrast, an
order effectuating an existing judgment allows the court
to protect the integrity of its original ruling by ensuring
the parties’ timely compliance therewith.’’ (Internal
quotation marks omitted.) O’Halpin v. O’Halpin, 144
Conn. App. 671, 677, 74 A.3d 465, cert. denied, 310 Conn.
952, 81 A.3d 1180 (2013). Having set forth our standard
of review and the relevant legal principles that guide
our analysis, we now consider the parties’ arguments
on appeal.
The plaintiff specifically contends that a postjudg-
ment change in the value of a marital asset does not
constitute a valid ground for opening a judgment, and
that the ‘‘case law makes clear that the reasons why a
trial court may open a judgment must relate to pre-
judgment conduct.’’ (Emphasis in original.) The plaintiff
further argues that, in the present case, the court did
not have jurisdiction to open the judgment based on
her prejudgment withdrawal of $157,440, because (1)
the court considered collectively the prejudgment with-
drawal and the postjudgment withdrawals made by the
plaintiff in deciding to open the judgment, and (2) given
the admission of the defendant’s expert that the pre-
judgment withdrawal had no material impact on the
value of the companies, it ‘‘could not constitute a ‘strong
and compelling’ [reason] for opening a judgment under
. . . § 52-212a or Practice Book § 17-4 (a).’’
The defendant responds that the court acted within
its discretion in finding that the plaintiff’s misconduct
warranted the opening of the dissolution judgment. The
defendant argues that ‘‘[t]here is no prohibition in any
of Connecticut’s statutes, case law, or rules [of] practice
that prevent a court from opening a judgment because
of events that occur after a judgment has been ren-
dered.’’ Further, the defendant argues that this court
should not ‘‘create an exception to the unambiguous,
well-established rule that it is within the discretion of
the trial court to open a judgment where, within four
months of the issuance of the original judgment, it deter-
mines that there is good and compelling reason for its
modification or vacation.’’
As a threshold issue, we conclude that the defendant
complied with the mandates of § 52-212a and Practice
Book § 17-4 by filing his motion to open within four
months of the issuance of the dissolution judgment.
The court issued a memorandum of decision dissolving
the parties’ marriage on May 8, 2012. The relevant
motion to open was filed by the defendant on June 15,
2012. Because the defendant’s motion to open was filed
within four months of the issuance of the dissolution
judgment, the court clearly had jurisdiction to modify
the judgment, provided that the ground for opening the
judgment was a proper basis for exercising jurisdiction.
In determining whether the court properly opened
its judgment of dissolution and issued new financial
orders, it is necessary to consider the court’s reasoning.
In its November 6, 2012 memorandum of decision, the
court, Munro, J., ordered a hearing on the defendant’s
motion to open ‘‘to provide such evidence as is neces-
sary for the court to . . . find such facts as are neces-
sary to enter new financial orders, as may be necessary,
that take into account the plaintiff’s unauthorized with-
drawal of funds from [the companies].’’ The court rea-
soned that ‘‘[it] would be patently unfair and inequitable
to leave the court’s judgment orders in place if the
defendant’s unrebutted assertion of substantial injury
to [the companies] has resulted from the plaintiff’s uni-
lateral and inappropriate appropriation of [company]
funds for noncorporate purposes.’’ The court thus
ordered an evidentiary hearing so that the parties could
present the court with additional evidence as to events
that occurred both before and after the judgment. After
hearing evidence and determining it was appropriate
to open the judgment, the court, on February 25, 2014,
entered new financial orders ‘‘in lieu of and replac[ing]
all of the orders in the original memorandum of decision
regarding ownership of [the companies] and payment
therefor.’’
We agree with the plaintiff that, in the present case,
because the opening was premised on considering post-
judgment conduct, the court did not have authority
to open the judgment. In addition to considering her
prejudgment conduct, the court improperly considered
the postjudgment withdrawals made by the plaintiff.
Neither party has identified precedent wherein the trial
court opened a marital dissolution judgment to revalue
an asset subject to equitable distribution on the basis
of postjudgment conduct by one of the parties. As the
plaintiff’s counsel noted at oral argument before this
court, ‘‘not one single case has been cited by [the defen-
dant] in which a court has opened a judgment based
on conduct that occurred after the judgment,’’ and our
review of the case law has uncovered no such authority.
Further, neither § 46b-81 nor any other closely related
statute vests the trial court with authority to revisit a
judgment dividing marital property where postjudg-
ment conduct, conditions, or changes affect the value
of a marital asset.
It is apparent from our review of the record that the
court considered the plaintiff’s postjudgment withdraw-
als in granting the defendant’s motion to open the judg-
ment.12 Two of the three withdrawals made by the
plaintiff occurred postjudgment, totaling $475,332.81.
The plaintiff’s single prejudgment withdrawal in the
amount of $157,440 was relatively insignificant, consid-
ering the court’s finding that, at the time of the dissolu-
tion judgment, the companies retained $6 million in
cash assets, and its reliance on the plaintiff’s expert,
Schachter, that ‘‘the [total] withdrawal of $632,773 was
de minimus in comparison to the cash position of [the
companies] at the time.’’ The record further reveals
that the court, in arriving at the new valuation for the
companies, found that the reduction in value was
‘‘wholly related to all of the combined conduct of the
plaintiff. . . .’’
Here, the court did not have authority to modify the
division of marital property once the judgment of disso-
lution became final on May 8, 2012. The court’s decision
to grant the defendant’s motion to open, and its entry of
substitute financial orders in response to the plaintiff’s
postjudgment misconduct, cannot fairly be construed
as seeking an effectuation of the original judgment.
The court did not issue substitute financial orders to
‘‘protect the integrity of its original ruling by ensuring
the parties timely compliance therewith’’; (internal quo-
tation marks omitted) O’Halpin v. O’Halpin, supra, 144
Conn. App. 677; because the substitute financial orders
were entered ‘‘in lieu of and replace[d] all of the orders
in the original memorandum of decision regarding own-
ership of [the companies] and payment therefor.’’
Rather, in ordering a postjudgment evidentiary hearing
to gather new evidence with respect to the extent of
the plaintiff’s misconduct, the court ‘‘introduce[d] new
elements into the details . . . but [left] the general pur-
pose and effect of the subject-matter intact.’’ (Internal
quotation marks omitted.) O’Halpin v. O’Halpin, supra,
677. Thus, we conclude that the court’s postjudgment
ruling modified rather than effectuated the original
property distribution. Under these circumstances, the
trial court exceeded the scope of its authority by open-
ing the judgment to modify its financial orders based
on the plaintiff’s postjudgment misconduct.13 We,
accordingly, reverse the judgment of the trial court and
reinstate the May, 2012 financial orders in their entirety.
II
AC 34936
As noted, the defendant claims with regard to the
May, 2012 dissolution judgment that the court (1)
improperly awarded the plaintiff alimony from income
generated by the companies plus a portion of the value
of the companies, constituting impermissible ‘‘double
dipping,’’ and (2) abused its discretion by ordering him
to purchase the plaintiff’s interest in the companies.
We disagree.
‘‘The standard of review in family matters is well
settled. An appellate court will not disturb a trial court’s
orders in domestic relations cases unless the court has
abused its discretion or it is found that it could not
reasonably conclude as it did, based on the facts pre-
sented. . . . In determining whether a trial court has
abused its broad discretion in domestic relations mat-
ters, we allow every reasonable presumption in favor
of the correctness of its action. . . . Appellate review
of a trial court’s findings of fact is governed by the
clearly erroneous standard of review. The trial court’s
findings are binding upon this court unless they are
clearly erroneous in light of the evidence and the plead-
ings in the record as a whole. . . . A finding of fact is
clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Internal quotation
marks omitted.) Gervais v. Gervais, 91 Conn. App. 840,
843–44, 882 A.2d 731, cert. denied, 276 Conn. 919, 888
A.2d 88 (2005). We now address the merits of the defen-
dant’s claims in turn.
A
The defendant first claims that the court improperly
awarded the plaintiff alimony from income generated
by the companies plus a portion of the value of the
companies, which constituted impermissible ‘‘double
dipping.’’ The defendant specifically argues that it was
improper for the court to take into account the value
of the companies in both the property division and the
award of alimony, ‘‘because the income generated by
[the defendant’s 100 percent] ownership interest in the
companies was counted in determining [the defen-
dant’s] resources for purposes of alimony where the
court had also awarded the plaintiff nearly 50 percent
of the value of the companies.’’ We are not persuaded.
In ordering the defendant to pay the plaintiff $60,000
per month in alimony pursuant to General Statutes
§ 46b-82, the court stated the following: ‘‘The alimony
order is predicated on earnings, including member dis-
tributions to the defendant of up to $2,000,000 per year.
The court notes that the plaintiff’s valuation expert,
Sziklay, concluded that a comparable compensation for
the defendant, as a key person operating on Wall Street,
would be at least in the $1 million to $2 million range
annually. Ultimately, in the valuation model that he
used, Sziklay attributed 50 percent of the pretax profits
to the defendant. For 2010, that resulted in adjusted
compensation of $1,976,312. As of the second quarter’s
completion for 2011, that adjusted compensation attrib-
uted to the defendant was $684,880. The defendant pro-
vided no contrary evidence. The court finds this
approach reasonable. No evidence was adduced of any
increase in liabilities. Accordingly, finding earnings
attributable to the defendant in the amount of
$2,000,000 gross is conservative, the court adopts it as
a finding of fact as to the present earning capacity of
the defendant at [the companies].’’
On appeal, both parties agree with the general princi-
ple that a court may not take an income producing asset
into account in its property division and also award
alimony based on that same income. See, e.g., Eslami
v. Eslami, 218 Conn. 801, 815, 591 A.2d 411 (1991)
(suggesting it is improper for court to ‘‘[count] 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’’). The parties disagree, however,
as to whether the court made a factual finding regarding
the defendant’s general earning capacity and, if so,
whether such a finding was supported by the evidence
and the pleadings in the whole record. See, e.g.,
D’Amato Investments, LLC v. Sutton, 117 Conn. App.
418, 426, 978 A.2d 1135 (2009).
The defendant argues that the court did not make a
finding regarding his general earning capacity and,
rather, only determined what his earning capacity was
at the companies. The defendant distinguishes the pre-
sent case from McRae v. McRae, 129 Conn. App. 171,
187, 20 A.3d 1255 (2011),14 because the defendant’s ali-
mony obligation in the present case ‘‘was based on his
capacity to earn income at [the companies]’’ rather than
his capacity to earn income independent of his owner-
ship of a business entity. Further, to the extent that the
court concluded that the defendant’s earning capacity
was independent of the income generated by the compa-
nies, the defendant argues that such a finding was
clearly erroneous. According to the defendant, ‘‘the
record does not contain any evidence demonstrating
that [the defendant] has an earning capacity of
$2,000,000 per year payable from any source other than
the companies,’’ nor did the court ‘‘have any evidence
or testimony before it concerning [the defendant’s]
earning capacity.’’ At oral argument before this court,
the defendant noted that the testimony of Sziklay
regarding his present earning potential on Wall Street
was stricken by the trial court because the defendant
argued that Sziklay had not been disclosed as an expert
in that capacity.
The plaintiff responds that the court found the defen-
dant’s general earning capacity, not limited to his capac-
ity with respect to his position at the companies. Relying
on the portion of the court’s May 8, 2012, memorandum
of decision which details the defendant’s Wall Street
experience, the plaintiff specifically contends that ‘‘the
trial court found that the [defendant], given his back-
ground, experience and qualifications, had an earning
capacity of at least $1–2 million, irrespective of his
income from [the companies].’’ The plaintiff further
argues that ‘‘[there] is nothing legally improper about
a trial court using a spouse’s income generated from a
closely held business as some evidence of his earning
capacity in general, which is what the trial court did in
this case’’ and in McRae v. McRae, supra, 129 Conn.
App. 187. We agree with the plaintiff.
Our review of the record leads us to conclude that the
court made its factual finding regarding the defendant’s
earning capacity independent of his employment at the
companies. As noted, the court predicated its alimony
order upon its factual finding that ‘‘the present [gross]
earning capacity of the defendant at Pentalpha’’ was $2
million per year, conservatively. The record contains
additional evidence that the court credited, however,
in fashioning its order of alimony. Specifically, the court
noted that Sziklay’s approach to valuation was ‘‘reason-
able.’’ In his report, Sziklay ‘‘concluded that a compara-
ble compensation for the defendant, as a key person
operating on Wall Street, would be at least in the $1–2
million range annually.’’ The record further reveals that
the court was presented with evidence with respect to
the defendant’s educational background and his
employment history prior to commencing his work at
the companies in 1995, which included various posi-
tions on Wall Street and in London. Accordingly, we
conclude that the court’s finding regarding the defen-
dant’s capacity to earn income independent of his posi-
tion was supported by evidence in the record. See
Gervais v. Gervais, supra, 91 Conn. App. 843–44.
Because we are not left with ‘‘the definite and firm
conviction that a mistake has been committed’’; (inter-
nal quotation marks omitted) id., 844; we conclude that
the court acted within its discretion in awarding ali-
mony to the plaintiff under the facts of the present case.
B
The defendant also claims the court abused its discre-
tion by entering an order that effectively obligated him
to purchase the plaintiff’s interest in the companies for
$6 million, because both parties had requested that the
court direct the sale of the companies in their proposed
orders. We disagree.
The following additional facts are relevant to our
discussion. In her proposed financial orders, the plain-
tiff asked the court to require the defendant to run the
companies. The defendant argued that the companies
should be sold, but he requested that the court appoint
an entity to sell the companies. Subsequently, the plain-
tiff amended her proposed orders, requesting that the
court order the parties to sell the companies.
On May 8, 2012, the court ordered that the plaintiff
transfer to the defendant all of her rights, title, and
interest to the companies. In exchange, the court
ordered the defendant to sign a promissory note,
secured by the stock and accounts of the companies,
requiring him to pay the plaintiff $1 million per year
for six years for her share in the companies. The order
further provided that, if the defendant elected to sell
the companies within six months from the dissolution
judgment, then he was to pay the plaintiff 55 percent
of the sale proceeds, and the plaintiff was to receive
no less than $4 million from the sale.
On appeal, the defendant argues that ‘‘[by] awarding
[ownership of] the companies to [the defendant], the
court ruled on a claim that the plaintiff withdrew when
she submitted her operative proposed orders requesting
the sale of the companies.’’ The defendant reasons that
if he is unable to sell the companies, the court’s order
will ‘‘[force him] to continue operating [the companies]
and to deplete the companies’ resources to pay the
plaintiff [$6 million].’’ The defendant also argues that
if he is able to sell the companies, he will be ‘‘solely
responsible for any taxes due upon sale’’ because the
plaintiff was ordered to transfer ownership to him prior
to the occurrence of any sale. In so arguing, the defen-
dant relies on Kavanah v. Kavanah, 142 Conn. App.
775, 782, 66 A.3d 922 (2013) (holding that trial court
abused discretion in sua sponte ordering parties to pay
$5000 in fees to guardian ad litem where prior order
establishing that fees would be paid by state was not
challenged in any way by parties), and Gaffey v. Gaffey,
91 Conn. App. 801, 804 n.1, 882 A.2d 715 (‘‘The [trial]
court is not permitted to decide issues outside of those
raised in the pleadings. . . . Additionally, it is well
established jurisprudence that the pleadings serve to
frame the issues before a trial court.’’ [Internal quota-
tion marks omitted.]), cert. denied, 276 Conn. 932, 890
A.2d 572 (2005).
The plaintiff argues that the court ‘‘acted within its
discretion when it gave the defendant the option to
keep [the companies] or sell them.’’ Specifically, the
plaintiff argues that the defendant’s claim is without
merit because it is based on a faulty analogy, ‘‘that a
party’s proposed financial orders are legally equivalent
to claims for relief alleged in a complaint.’’ The plaintiff
further contends that this court ‘‘has squarely rejected
the argument that parties’ proposed financial orders
constrain the trial court’s discretion in fashioning its
financial orders.’’ See Fitzsimons v. Fitzsimons, 116
Conn. App. 449, 459, 975 A.2d 729 (2009) (‘‘[w]e never
have held that proposed orders serve to limit . . . the
discretion of the trial court’’). The plaintiff further
argues that the court, pursuant to its broad equitable
power in fashioning financial orders attendant to a mar-
tial dissolution proceeding, may award alimony to a
party ‘‘even if that party does not seek it and has waived
all claims for alimony.’’
In his reply brief, the defendant clarifies that he ‘‘is
not arguing that the trial court must adopt the proposed
orders of one party or the other,’’ but rather argues that
the court abused its discretion by entering an order
‘‘that effectively compelled [the defendant] to purchase
[the plaintiff’s] interest in the companies for $6,000,000’’
where both parties requested the sale of the companies
in their proposed orders. The defendant argues that the
cases relied upon by the plaintiff, including Fitzsimons
v. Fitzsimons, supra, 116 Conn. App. 449, and Fiddel-
man v. Redmon, 37 Conn. App. 397, 656 A.2d 234 (1995),
are distinguishable from the facts of the present case
because the parties here agreed that the court should
direct the sale of the companies. He further contends
that ‘‘[where] the parties to a divorce action are in
agreement as to the distribution of a particular marital
asset . . . the trial court should not adjudicate an issue
that is not in dispute and instead should distribute that
asset in accordance with the requests made by the
parties.’’
As noted in part I of this opinion, the court distributed
the parties’ marital property pursuant to § 46b-81.
Nowhere does this statute limit the court’s ability to
award a marital asset to one of the parties in a dissolu-
tion proceeding, even if they both are in agreement
regarding how the property be distributed. ‘‘We have
often stated that the power to act equitably is the key-
stone to the court’s ability to fashion relief in the infinite
variety of circumstances that arise out of the dissolution
of a marriage. . . . These equitable powers give the
court the authority to consider all the circumstances
that may be appropriate for a just and equitable resolu-
tion of the marital dispute.’’ (Citation omitted; internal
quotation marks omitted.) Porter v. Porter, 61 Conn.
App. 791, 797, 769 A.2d 725 (2001). We cannot agree
that the court here abused its discretion in rendering
its initial financial orders with respect to the companies.
The judgment granting the motion to open is reversed
and the case is remanded with direction to reinstate
the May, 2012 financial orders. The judgment is affirmed
in all other respects.
In this opinion the other judges concurred.
1
Although these appeals have not been consolidated by this court, we
write one opinion for purposes of judicial economy in which we assess the
claims made in both appeals.
2
Because we agree with the plaintiff as to her first claim and reverse the
judgment of the court opening the judgment of dissolution, we have no
occasion to reach the plaintiff’s additional claims that the court improperly
refused to apply the law governing causation and damages in a tort case,
and improperly found that the plaintiff breached the parties’ confidentiality
agreement. Likewise, we need not reach the plaintiff’s claim in the alternative
that ‘‘even if the trial court had jurisdiction to open the May 2012 judgment
based on postjudgment conduct, the judgment should be reversed because
it is based on the testimony of an unqualified expert.’’
3
Having determined that the court improperly opened the dissolution
judgment, we decline to review the defendant’s claim that the court was
required, under the mosaic doctrine, to order a new trial on all financial
issues after finding that the plaintiff’s misconduct had significantly decreased
the value of the companies.
4
Sziklay chose the date of June 30, 2011 ‘‘to be as close as practicable
to the date of the decree dissolving [the plaintiff’s] marriage to [the defen-
dant], in accordance with the standard of value required by the family
court before which the subject dissolution action [was] adjudicated, and in
accordance with conventional valuation theory and practices.’’ The report
authored by Sziklay, dated August 15, 2011, was entered into evidence by
the plaintiff as a full exhibit on March 1, 2012.
5
On May 13, 2010, during the pendente lite period, the parties agreed to
advances against equity, also known as member distributions, from the
companies. In accordance with the respective ownership interests of the
parties, the plaintiff received $3,060,000 and the defendant received
$2,940,000 from the companies. Pursuant to the court ordered stipulation,
these sums were deemed advances against equitable property distribution
ordered by the court.
6
Practice Book § 61-11 (a) provides in relevant part: ‘‘Except where other-
wise provided by statute or other law, proceedings to enforce or carry out
the judgment or order shall be automatically stayed until the time to take
an appeal has expired. If an appeal is filed, such proceedings shall be stayed
until the final determination of the cause. If the case goes to judgment on
appeal, any stay thereafter shall be in accordance with Section 71-6 (motions
for reconsideration), Section 84-3 (petitions for certification by the Connecti-
cut supreme court), and Section 71-7 (petitions for certiorari by the United
States Supreme Court).’’
7
The execution of the court’s order awarding the plaintiff periodic alimony
was not stayed. Practice Book § 61-11 (c) provides in relevant part: ‘‘Unless
otherwise ordered, no automatic stay shall apply . . . to orders of periodic
alimony, support, custody or visitation in family matters brought pursuant
to chapter 25 or to any later modification of such orders. The automatic
orders set forth in Section 25-5 (b) (1), (2), (3), (5) and (7) shall remain in
effect during any appeal period and, if an appeal is taken, until the final
determination of the cause unless terminated, modified or amended further
by order of a judicial authority upon motion of either party. . . .’’
8
We note that this was the second motion to open the judgment of dissolu-
tion that was filed by the defendant. Previously, on May 29, 2012, the defen-
dant filed two motions: (1) a ‘‘motion to open and adduce additional
evidence, postjudgment,’’ and (2) a ‘‘motion to reargue, postjudgment.’’ The
court denied both motions on August 1, 2012.
9
In rejecting the remedy of ordering a new trial, the court reasoned that
‘‘[t]he parties have had the ability to provide all their evidence at the original
trial and in regard to the instant motion. This court has the ability to integrate
all of the facts found in its consideration and their application to the law
as it refashions its orders here. A new trial would be an unneeded expense
and delay with neither necessity nor benefit seen.’’
10
Subsequently, on March 5, 2014, the defendant filed a motion to reargue
the court’s substitute financial orders. The defendant argued that reargument
was necessary because ‘‘the [court] awarded the [companies] to [the defen-
dant] and ordered him to pay the plaintiff the sum of $3,000,000 notwithstand-
ing its finding that the plaintiff’s misconduct diminished the value of the
[companies] by the sum of $5,678,680.’’ On March 26, 2014, the court denied
the defendant’s motion to reargue.
11
Practice Book § 17-4 (a) provides: ‘‘Unless otherwise provided by law
and except in such cases in which the court has continuing jurisdiction,
any civil judgment or decree rendered in superior court may not be opened
or set aside unless a motion to open or set aside is filed within four months
succeeding the date on which notice was sent. The parties may waive the
provisions of this subsection or otherwise submit to the jurisdiction of
the court.’’
12
We are not required to conclude that the court considered only the
plaintiff’s postjudgment conduct in opening the judgment.
13
We address the postjudgment conduct of the plaintiff only in the context
of the issues raised in this case. We do not address whether other remedies
may exist for postjudgment conduct that may diminish the value of property.
14
In McRae, this court rejected the defendant’s claim that the trial court
improperly awarded the plaintiff the cash equivalent of one-half of the value
of a closely held business in addition to alimony as impermissible ‘‘double-
dipping.’’ McRae v. McRae, supra, 129 Conn. App. 187–88.