Merk-Gould v. Gould

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LINDA MERK-GOULD v. ROBERT F. GOULD, JR.
(AC 40172)
Lavine, Alvord and Keller, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court
dissolving his marriage to the plaintiff and making certain financial and
property orders. He claimed, inter alia, that the court erroneously found
that he had an annual earning capacity of $200,000. Held:
1. The trial court’s finding that the defendant had an earning capacity of
$200,000 per year was clearly erroneous and not supported by the evi-
dence: although the defendant testified that since leaving employment
in 2003, he had earned sufficient money to pay his expenses by investing
in various securities, the trial court awarded 60 percent of those invest-
ment assets to the plaintiff, its finding of an earning capacity was made
in consideration of the defendant’s investment income, and the record
lacked evidence to support a finding that the defendant could return to
work after having been out of the workforce since 2003, or that $200,000
was a net amount that he could realistically be expected to earn after
being left with only 40 percent of his investment assets; accordingly,
because the alimony award was necessarily interwoven with the court’s
remaining financial and property orders, a new hearing was necessary at
which the court had to reconsider all of the financial and property orders.
2. The trial court abused its discretion in valuing the defendant’s interests
in private equity companies on the basis of the cost of the assets at the
time of their purchase rather than as of the date of the marital dissolution;
pursuant to statute (§ 46b-81 [a]), the court may assign to either spouse
all or any part of the estate of the other spouse at the time of entering
a dissolution decree, which demonstrated that the date of the granting
of the divorce was the proper time by which to determine the value of
the estate of the parties on which to base the division of property,
and the plaintiff’s claim that the court’s order was a precise means of
providing a remedy for the defendant’s dissipation of marital assets was
unavailing, as she made no claim of dissipation before the trial court,
which made no findings related to dissipation or that the defendant had
violated any court order.
Argued May 30—officially released September 4, 2018
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk and tried to the court, Tin-
dill, J.; judgment dissolving the marriage and granting
certain other relief; thereafter, the court denied the
defendant’s motion to reargue, and the defendant
appealed to this court. Reversed in part; further pro-
ceedings.
Campbell D. Barrett, with whom were Johanna S.
Katz and, on the brief, Jon T. Kukucka, for the appel-
lant (defendant).
Kenneth J. Bartschi, with whom were Dana M.
Hrelic and, on the brief, Wayne Effron, for the appel-
lee (plaintiff).
Opinion
ALVORD, J. The defendant, Robert F. Gould, Jr.,
appeals from the judgment of the trial court dissolving
his marriage to the plaintiff, Linda Merk-Gould, and
entering certain financial and property orders. On
appeal, the defendant claims that the court: (1) improp-
erly ordered tax-free alimony to the plaintiff; (2) errone-
ously found that the defendant had an annual earning
capacity of $200,000; (3) improperly awarded the plain-
tiff 60 percent of the pretax amount of the defendant’s
pension; (4) abused its discretion in valuing the defen-
dant’s interests in several private equity companies on
the basis of the cost of the assets at the time of purchase,
rather than the value of the assets as of the date of the
dissolution; (5) abused its discretion in awarding the
plaintiff attorney’s fees; and (6) abused its discretion
in denying his motion for a mistrial. Because we agree
with the defendant’s second and fourth claims, we
reverse in part the judgment of the trial court and
remand the case for a new trial on the financial and
property orders.1
The following facts, as found by the trial court, and
procedural history are relevant to this appeal. The par-
ties were married on May 25, 1987, and have two adult
children. Both parties entered the marriage with assets,
and both inherited money from family members during
the marriage. The parties kept the majority of their
income and assets separate during the marriage, and
the defendant has significantly greater assets than the
plaintiff. The plaintiff, who was sixty-four at the time
of trial, had ended her career at age forty-eight because
of health reasons. The defendant was sixty-five years
old at the time of trial, in good health, and well educated,
having received an undergraduate degree and a master
of business administration degree. The defendant left
full-time employment fourteen years prior to trial, at
age fifty-one, and ‘‘has subsisted on passive income
from investments and [distributions from] his [Pricew-
aterhouseCoopers LLP] Partner Retirement Plan [(pen-
sion)].’’ Specifically, the defendant ‘‘has earned income
as a ‘self-directed’ investor since 1980 such that he did
not have to seek gainful employment after 2002 to meet
monthly expenses (which now total $11,709).’’
On May 1, 2013, the plaintiff commenced this dissolu-
tion action. The defendant filed an answer and a cross-
complaint. The matter was tried to the court over eight
days. On January 31, 2017, the court rendered judgment
dissolving the parties’ marriage, finding that the defen-
dant was at fault for the breakdown of the marriage.
In its memorandum of decision, the court made orders
regarding property distribution, alimony, and attorney’s
fees. The court awarded alimony on the basis of the
defendant’s earning capacity, finding that ‘‘[t]he credi-
ble evidence before the court shows that the defendant
can reasonably be expected to earn $200,000 (net) annu-
ally.’’ Utilizing that finding of fact, the court ordered
alimony to the plaintiff in the amount of $7500 per
month beginning February, 2017, until the death of
either party or the remarriage of the plaintiff, whichever
should occur first. The court ordered that the alimony
payments ‘‘will not be taxable to the plaintiff nor deduct-
ible by the defendant.’’
With respect to property distribution, the plaintiff, in
her proposed orders, requested that the court divide
all bank accounts, publicly-traded securities, private
equity, business annuities, and frequent flier miles listed
on the defendant’s financial affidavit and award 60 per-
cent of such assets to the plaintiff. She further requested
that ‘‘the defendant shall receive each of the private
equity companies valued at cost, i.e., the amount paid
by the defendant . . . for his interest in the company in
question, and the plaintiff shall receive a corresponding
amount in cash.’’ In its memorandum of decision, the
court adopted the plaintiff’s proposed order and incor-
porated it as an order of the court.
The court also awarded the plaintiff attorney’s fees
in the amount of $220,346.852 and 60 percent of the
pretax amount of each payment the defendant receives
from his pension. The court ordered that the pension
payments were not taxable to the plaintiff nor deduct-
ible by the defendant, and further that such payments
shall continue regardless of the plaintiff’s cohabitation
or marriage. The defendant filed a motion to reargue,
which the court denied on February 24, 2017. This
appeal followed.
We begin by setting forth the standard of review. ‘‘An
appellate court will not disturb a trial court’s orders in
domestic relations cases unless the court has abused
its discretion or it is found that it could not reasonably
conclude as it did, based on the facts presented. . . .
In determining whether a trial court has abused its
broad discretion in domestic relations matters, we
allow every reasonable presumption in favor of the
correctness of its action. . . . Furthermore, [t]he trial
court’s findings [of fact] are binding upon this court
unless they are clearly erroneous in light of the evidence
and the pleadings in the record as a whole. . . . A
finding of fact is clearly erroneous when there is no
evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’’
(Citation omitted; internal quotation marks omitted.)
Steller v. Steller, 181 Conn. App. 581, 587–88, A.3d
(2018).
I
The defendant claims on appeal that the court’s find-
ing that he had an earning capacity of $200,000 per year
is clearly erroneous. Specifically, he claims that ‘‘[t]here
was no evidence presented at trial that could reasonably
lead the court to conclude that [the defendant] has
the capacity to earn income from employment in the
amount of $200,000 per year in after tax income. Rather,
the undisputed evidence established that [the defen-
dant] was sixty-five . . . years old at the time of the
dissolution and had been out of the workforce for
approximately thirteen . . . years.’’ We disagree that
the trial court’s finding was limited to earning capacity
from employment, but nevertheless agree that the
court’s finding of earning capacity from investment
income was clearly erroneous.
General Statutes § 46b-82 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 . . . the age,
health, station, occupation, amount and sources of
income, earning capacity, vocational skills, education,
employability, estate and needs of each of the parties
. . . .’’ ‘‘It is well established that the trial court may
under appropriate circumstances in a marital dissolu-
tion proceeding base financial awards on the earning
capacity of the parties rather than on actual earned
income. . . . Earning capacity, in this context, is not
an amount which a person can theoretically earn, nor
is it confined to actual income, but rather it is an amount
which a person can realistically be expected to earn
considering such things as his vocational skills, employ-
ability, age and health. . . . [I]t also is especially appro-
priate for the court to consider whether the defendant
has wilfully restricted his earning capacity to avoid
support obligations . . . . Moreover, [l]ifestyle and
personal expenses may serve as the basis for imputing
income where conventional methods for determining
income are inadequate.’’ (Internal quotation marks
omitted.) Steller v. Steller, supra, 181 Conn. App. 590.
‘‘[A] court properly may impute earning capacity from
employment . . . [and] [w]e can perceive no reason
to adopt a different standard for the ascertainment of
investment income than the one we employ for the
ascertainment of earning capacity.’’ (Internal quotation
marks omitted.) Fox v. Fox, 152 Conn. App. 611, 634,
99 A.3d 1206, cert. denied, 314 Conn. 945, 103 A.3d 977
(2014), quoting Weinstein v. Weinstein, 280 Conn. 764,
772, 911 A.2d 1077 (2007).
We first note that the defendant’s argument rests
upon the premise that the court found that he could
realistically be expected to earn $200,000 net by
returning to employment. That premise is mistaken.
The court’s earning capacity determination immediately
followed the court’s finding that the defendant earns
income as a ‘‘self-directed’’ investor, and that he had
not needed to return to work to cover his monthly
expenses, which totaled $11,709. (Internal quotation
marks omitted.) Accordingly, we conclude that the
court’s finding of an earning capacity was made in con-
sideration of his investment income, rather than poten-
tial employment income.
Indeed, the record entirely lacks evidence to support
any finding that the defendant successfully could return
to work after having been out of the workforce since
approximately 2003, whether the court credited the
plaintiff’s or the defendant’s testimony. The defendant
testified that after leaving full-time employment, he had
spoken with headhunters and had some interviews, but
that nothing ‘‘panned out.’’ The defendant further testi-
fied that ‘‘[a]fter a while I got to the point where it
seemed like I was just running into the age ceiling. I
was too old by then, fifty-five or whatever, and people
were not willing to really consider it. They thought I
was overqualified or whatever else. So I figured I’d
focus in on the investments and do investing and . . .
I thought between the pension and the investment
returns, we’d be fine and we were.’’ The defendant also
testified that he was subject to a noncompete clause,
which prevented him from obtaining employment with
competitors. The plaintiff testified that between 2002
and 2013, to her knowledge, the defendant had not
accepted any interviews, engaged any headhunters, or
otherwise attempted to seek employment. Similarly, the
plaintiff testified that she had not sought out work since
2002, but had worked on two occasions for a few days
each time. Accordingly, there is nothing in the record
that would support a finding that the defendant realisti-
cally could be expected to return to employment earn-
ing $200,000 net annually.
We conclude that the court’s finding that the defen-
dant has a net earning capacity of $200,000 from invest-
ment income is not supported by the evidence.3
Although the defendant testified that since leaving
employment in 2003, he has earned sufficient money
to pay his expenses by investing in various securities,
the court awarded 60 percent of those investment assets
to the plaintiff. Specifically, the court divided the defen-
dant’s bank accounts, publicly-traded securities, private
equity assets, business annuities, and frequent flier
miles, and awarded 60 percent to the plaintiff and 40
percent to the defendant. Thus, to the extent the court
found a net earning capacity of $200,000 on the basis
of the defendant’s investment income, the court would
have to have evidence that the defendant remained
capable of earning that net amount with only 40 percent
of his investment assets. See Cleary v. Cleary, 103 Conn.
App. 798, 806–808, 930 A.2d 811 (2007) (considering
that plaintiff had been awarded half of defendant’s
retirement benefits and half of his pension benefits
upon retirement in reversing financial orders after con-
cluding that evidence did not reveal income sufficient
to support an alimony award of $1000 per week). Our
review of the record reveals no evidence supporting a
finding that $200,000 was a net amount that the defen-
dant could realistically be expected to earn after being
left with only 40 percent of his investment assets. See
Prial v. Prial, 67 Conn. App. 7, 14, 787 A.2d 50 (2001)
(trial court’s basis for finding plaintiff’s earning capacity
was clearly erroneous where ‘‘[t]he record is devoid of
any testimony, even by the plaintiff, that comparable
employment would yield the plaintiff $62,000 per year,
the figure adopted by the court for his earning
capacity’’).
The plaintiff argues that the court’s earning capacity
finding is supported by the defendant’s testimony as
to the increase in value of his investment assets. On
December 18, 2015, the defendant testified that as of
August 16, 2013, when he filed his first financial affida-
vit, his investment assets were worth $5 million, and
that his investment portfolio had since grown by 10
percent, or $500,000. The defendant attributed the
growth to ‘‘[i]mprovements in the market, good invest-
ment choices, [and] knowing when to buy and sell.’’
Notwithstanding that the court found that ‘‘[t]he vast
majority of the defendant’s testimony was not credible,’’
even if the court were to credit this particular testimony,
it still would not provide the basis for finding a $200,000
net earning capacity in light of the court’s award of 60
percent of those assets to the plaintiff.
Because § 46b-82 (a) requires the court, when
determining alimony, to consider each party’s ‘‘amount
and sources of income [and] earning capacity’’; [internal
quotation marks omitted] Steller v. Steller, supra, 181
Conn. App. 598; the court’s clearly erroneous finding
as to the defendant’s earning capacity requires that we
reverse the court’s order setting the defendant’s ali-
mony obligation.
II
The defendant next claims that the court erred in
valuing certain marital assets available for distribution.
Specifically, he claims that the court improperly valued
his interests in several private equity companies on the
basis of the cost of the assets at the time of his purchase,
rather than the value of the assets as of the date of the
dissolution. The plaintiff responds that although she
did not assert a claim of dissipation as to the assets at
issue, the court did not abuse its discretion in fashioning
this order, which ‘‘was a precise means of providing a
remedy for the defendant’s dissipation of marital assets
. . . .’’ We agree with the defendant that the court
abused its discretion in valuing the assets.
The division of property in dissolution proceedings
is governed by General Statutes § 46b-81 (a), which
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.’’ (Emphasis added.) Our
Supreme Court has recognized that ‘‘[t]he only temporal
reference in the enabling legislation refers us to the
time of the decree as controlling the entry of financial
orders. It is neither unreasonable nor illogical, there-
fore, to conclude that the same date is to be used in
determining the value of the marital assets assigned by
the trial court to the parties.’’ Sunbury v. Sunbury, 216
Conn. 673, 676, 583 A.2d 636 (1990). Accordingly, ‘‘[i]n
the absence of any exceptional intervening circum-
stances occurring in the meantime, [the] date of the
granting of the divorce is the proper time by which to
determine the value of the estate of the parties upon
which to base the division of property.’’ (Internal quota-
tion marks omitted.) Bruno v. Bruno, 132 Conn. App.
339, 354, 31 A.3d 860 (2011); see also Kremenitzer v.
Kremenitzer, 81 Conn. App. 135, 139, 838 A.2d 1026
(2004).
We reject the plaintiff’s argument that the court’s
order ‘‘was a precise means of providing a remedy for
the defendant’s dissipation of marital assets . . . .’’ The
plaintiff acknowledges that she made no claim of dissi-
pation before the trial court. Moreover, the court in the
present case made no findings related to dissipation.
See Gershman v. Gershman, 286 Conn. 341, 351, 943
A.2d 1091 (2008) (trial court erred in considering ‘‘dissi-
pation of family assets’’ in overall asset division where
trial court had made no finding of ‘‘financial miscon-
duct, e.g., intentional waste or a selfish financial trans-
action, or that the defendant had used marital assets
for a nonmarital purpose with regard to either of [the]
transactions’’ [internal quotation marks omitted]). Nor
did the court find that the defendant had violated any
court order. Cf. O’Brien v. O’Brien, 326 Conn. 81, 103,
161 A.3d 1236 (2017) (trial court had discretion to rem-
edy plaintiff’s violations of court order through distribu-
tion of marital property).
Accordingly, we conclude that the court abused its
discretion in valuing the defendant’s interests in private
equity companies on the basis of the cost of the assets
at the time of their purchase, rather than the value of
the assets as of the date of the dissolution.
III
We turn now to the appropriate relief, if any, to be
ordered based on the conclusions that we have reached.
The defendant seeks ‘‘a new hearing on the financial
matters of this case,’’ and the plaintiff responds that
the challenged orders are ‘‘severable from the mosaic
of financial orders.’’ We agree with the defendant.
‘‘We previously have characterized the financial
orders in dissolution proceedings as resembling a
mosaic, in which all the various financial components
are carefully interwoven with one another. . . .
Accordingly, when an appellate court reverses a trial
court judgment based on an improper alimony, property
distribution, or child support award, the appellate
court’s remand typically authorizes the trial court to
reconsider all of the financial orders. . . . We also have
stated, however, that [e]very improper order . . . does
not necessarily merit a reconsideration of all of the trial
court’s financial orders. A financial order is severable
when it is not in any way interdependent with other
orders and is not improperly based on a factor that is
linked to other factors. . . . In other words, an order
is severable if its impropriety does not place the correct-
ness of the other orders in question. . . . Determining
whether an order is severable from the other financial
orders in a dissolution case is a highly fact bound
inquiry.’’ (Citations omitted; internal quotation marks
omitted.) Tuckman v. Tuckman, 308 Conn. 194, 214,
61 A.3d 449 (2013).
In the present case, we have concluded that the court
abused its discretion in fashioning its alimony award
upon a clearly erroneous finding that the defendant
had a net earning capacity of $200,000. This order is
necessarily interwoven with the court’s remaining
financial and property orders. Accordingly, we con-
clude that the court on remand must reconsider all
of the financial and property orders. See Wiegand v.
Wiegand, 129 Conn. App. 526, 540, 21 A.3d 489 (2011)
(reversing financial and property orders after conclud-
ing that court abused discretion by failing to award
some form of alimony to plaintiff); Pellow v. Pellow,
113 Conn. App. 122, 129, 964 A.2d 1252 (2009) (reversing
financial and property orders after concluding that
court abused discretion in rendering judgment under
§§ 46b-81 and 46b-82 in excess of defendant’s income
and without finding as to parties’ earning capacity).
The judgment is reversed with respect to all financial
orders, including the distribution of marital property,
and the case is remanded for further proceedings on
those issues. The judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
Because we agree with the defendant’s second and fourth claims, and
we conclude that the defendant is entitled to a new hearing on all financial
and property orders because the improper orders are inextricably inter-
woven with the mosaic of other financial and property orders that were
entered at the time of the final decree, we need not decide the defendant’s
remaining claims. See Kovalsick v. Kovalsick, 125 Conn. App. 265, 276, 7
A.3d 924 (2010) (declining to decide plaintiff’s claim concerning property
distribution after determining that court’s order denying alimony award
reflected an abuse of discretion).
2
As stated in footnote 1 of this opinion, we do not reach the defendant’s
claim that the court abused its discretion in awarding the plaintiff attorney’s
fees because ‘‘the plaintiff has ample liquid assets and there has been no
egregious litigation misconduct.’’ Because the issue may arise on remand,
we note the principles of law applicable to a determination of whether
attorney’s fees should be awarded.
General Statutes § 46b-62 (a) ‘‘authorizes the trial court to award attorney’s
fees in a dissolution action when appropriate in light of the ‘respective
financial abilities’ of the parties and the equitable factors listed in [General
Statutes] § 46b-82.’’ Hornung v. Hornung, 323 Conn. 144, 169, 146 A.3d 912
(2016). Our Supreme Court has stated ‘‘three broad principles by which
these statutory criteria are to be applied. First, such awards should not be
made merely because the obligor has demonstrated an ability to pay. Second,
where both parties are financially able to pay their own fees and expenses,
they should be permitted to do so. Third, where, because of other orders,
the potential obligee has ample liquid funds, an allowance of [attorney’s]
fees is not justified. . . . A determination of what constitutes ample liquid
funds . . . requires . . . an examination of the total assets of the parties
at the time the award is made.’’ (Citation omitted; internal quotation marks
omitted.) Id., 169–70. ‘‘[T]he availability of sufficient cash to pay one’s attor-
ney’s fees, [however], is not an absolute litmus test . . . . [A] trial court’s
discretion should be guided so that its decision regarding attorney’s fees does
not undermine its purpose in making any other financial award.’’ (Internal
quotation marks omitted.) Id., 170; see also id., 172 (holding that ‘‘[t]he trial
court abused its discretion in making the attorney’s fees awards because
the plaintiff received ample liquid funds as a result of the trial court’s
judgment, and the trial court’s determination that not awarding attorney’s
fees to the plaintiff would undermine its other awards was unreasonable’’).
3
To the extent the defendant argues that the court erred in using his
earning capacity rather than his actual earnings because he has not intention-
ally depressed his earnings, we note that ‘‘although financial orders often
arise in that context, the court need not find that the [party] wilfully dimin-
ished his income in order to consider earning capacity.’’ Rozsa v. Rozsa,
117 Conn. App. 1, 8, 977 A.2d 722 (2009); see also Weinstein v. Weinstein,
280 Conn. 764, 772, 911 A.2d 1077 (2007).