Horey v. Horey

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ALAN L. HOREY v. JOYCE A. HOREY
(AC 38379)
Lavine, Alvord and Harper, J.
Argued November 28, 2016—officially released May 2, 2017
(Appeal from Superior Court, judicial district of New
London at Norwich, Carbonneau, J.)
Lloyd L. Langhammer, for the appellant (defendant).
William E. McCoy, for the appellee (plaintiff).
Opinion
HARPER, J. The defendant, Joyce A. Horey, appeals
from the financial orders relating to the judgment of
the trial court dissolving her marriage to the plaintiff,
Alan L. Horey. On appeal, the defendant claims that the
trial court abused its discretion by entering an alimony
order that terminates upon the sale of the plaintiff’s
business. She argues that such a time limited alimony1
order is inconsistent with the facts found by the court,
and that the court, therefore, reasonably could not have
concluded as it did. For the reasons that follow, we
disagree and, accordingly, affirm the judgment of the
trial court.
The following procedural history and facts found by
the trial court are relevant to the defendant’s appeal.
The parties were married for approximately forty-three
years. Over the past twenty-three years, most of the
parties’ income appears to have been derived from the
plaintiff’s business, Professional Financial Services,
LLC (LLC), which sells insurance products and invest-
ments. The plaintiff is the sole member of the LLC
and has structured the LLC’s business to derive ‘‘trails
income.’’ This means that when the plaintiff sells a
financial product or insurance policy, he receives a
smaller commission at the time of sale than he other-
wise would be entitled to, and in return receives a
residual percentage of a client’s future premiums or
payments for as long as the client retains the original
product or policy. In recent years, the plaintiff’s annual
gross income from all sources, including the trails
income, has totaled approximately $150,000. The plain-
tiff expects this income to hold steady for the next two
years, but he ultimately plans to sell the business and
retire, at which point the trails income would cease.
Despite the cessation of this income, the plaintiff testi-
fied that he may be required by the purchaser of the
LLC to remain involved for some time in order to facili-
tate the new owner’s relationship with existing clients
and to preserve the trails income for the new owner.
The court made no findings regarding potential compen-
sation for this continued involvement post-sale of the
LLC.
On July 22, 2015, the court dissolved the parties’
marriage and entered numerous orders regarding the
division of marital property, debts, and set forth the
plaintiff’s obligation to pay alimony to the defendant
in the amount of $1000 per week. The order contained
no limitation on future modifications of the alimony
award; however, it did provide for alimony to terminate
upon the sale of the LLC. The court specified that any
such sale must be an arm’s length transaction at fair
market value and that the plaintiff must pay one half
of the net proceeds of the sale to the defendant. This
payment to the defendant is to mirror the form of the
payment made to the plaintiff, whether lump sum,
installments, or some combination thereof, thus ensur-
ing parity. The court expressly retained jurisdiction
over issues involving the sale of the LLC in order to
effectuate the intent of its orders to divide the assets
of the parties equitably. The court also provided for the
equal division of pensions, other retirement assets, bank
accounts, real property, and sale proceeds from two
residential properties.2
On July 30, 2015, the defendant filed a motion to
reargue, among other issues, the termination of alimony
upon the sale of the LLC. In that motion, the defendant
argued that the court’s orders were designed expressly
to ensure equitable alimony payments to the defendant,
but nevertheless fail to provide for a scenario in which
the plaintiff could structure his sale of the LLC to avoid
payments to the defendant. In particular, the defendant
argued the plaintiff could structure the sale to shift a
significant portion of the sale proceeds from an upfront
purchase payment to a post-sale consultation fee or
some similar arrangement. Under the court’s alimony
order, the defendant would not be entitled to receive
any portion of the funds paid to the plaintiff after the
sale, which rendered the alimony award unreasonable
and, therefore, an abuse of discretion by the court.
On August 25, 2015, the court granted the motion to
reargue and heard oral arguments from the parties. At
the conclusion of this hearing, the court stated that in
drafting the alimony order, it had been aware that Gen-
eral Statutes § 46b-86 deems all alimony awards to be
modifiable unless and to the extent that the court’s
decree precludes modification. The court stated that it
specifically had worded the alimony order so as to allow
modification in the future. The court acknowledged the
possibility that the plaintiff could attempt to structure
the sale of the LLC in a manner designed to avoid
obligations to the defendant, but nevertheless noted
that its order set standards designed to avoid this possi-
bility. Finally, the court noted that it expressly retained
jurisdiction over issues arising from the sale of the LLC
in order to correct any inequities that may arise in the
sale and to make any alteration of the alimony award
made necessary by the sale of the LLC. For those rea-
sons, the court declined to revise the alimony order.
This appeal followed.
On appeal, the defendant argues that the court abused
its discretion in ordering that alimony payments termi-
nate upon the sale of the LLC. She asserts that the
court’s order was logically inconsistent with its factual
findings, particularly that she lacks the ability to be
financially self-sufficient. She argues it was unreason-
able for the court to terminate alimony upon the sale
of the LLC under such circumstances. Additionally, she
argues that this limitation of the alimony award also
failed to give effect to the court’s intention to equitably
divide the income the plaintiff derives from the LLC
because the court’s order did not account for how the
defendant will share in any income the plaintiff derives
from the LLC after it is sold.
We begin by setting forth the standard of review
applicable to a court’s decision regarding financial
orders. ‘‘We review financial awards in dissolution
actions under an abuse of discretion standard. . . . In
order to conclude that the trial court abused its discre-
tion, we must find that the court either incorrectly
applied the law or could not reasonably conclude as it
did.’’ (Internal quotation marks omitted.) Procaccini v.
Procaccini, 157 Conn. App. 804, 808, 118 A.3d 112
(2015). ‘‘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.’’ (Internal quotation marks
omitted.) Wood v. Wood, 170 Conn. App. 724, 728,
A.3d (2017).
‘‘The generally accepted purpose of . . . alimony is
to enable a spouse who is disadvantaged through
divorce to enjoy a standard of living commensurate
with the standard of living during marriage.’’ (Internal
quotation marks omitted.) Brody v. Brody, 315 Conn.
300, 313, 105 A.3d 887 (2015). ‘‘In addition to the marital
standard of living, the trial court must also consider the
factors in [General Statutes] § 46b-82 when awarding
alimony.’’ Hornung v. Hornung, 323 Conn. 144, 163,
146 A.3d 912 (2016).
General Statutes § 46b-82 (a) provides in relevant
part that ‘‘[i]n determining whether alimony shall be
awarded, and the duration and amount of the award,
the court shall consider the evidence presented by each
party and shall consider the length of the marriage, the
causes for the . . . dissolution of the marriage . . .
the age, health, station, occupation, amount and sources
of income, earning capacity, vocational skills, educa-
tion, employability, estate and needs of each of the
parties and the [division of property made] pursuant to
[General Statutes §] 46b-81 . . . .’’ ‘‘The court is to
consider these factors in making an award of alimony,
but it need not give each factor equal weight. . . . We
note also that [t]he trial court may place varying degrees
of importance on each criterion according to the factual
circumstances of each case. . . . There is no additional
requirement that the court specifically state how it
weighed the statutory criteria or explain in detail the
importance assigned to each statutory factor.’’ (Internal
quotation marks omitted.) Wood v. Wood, supra, 170
Conn. App. 729. ‘‘[T]he record must indicate the basis
for the trial court’s award. . . . There must be suffi-
cient evidence to support the trial court’s finding that
the spouse should receive time limited alimony for the
particular duration established. If the time period for
the periodic alimony is logically inconsistent with the
facts found or the evidence, it cannot stand.’’ (Internal
quotation marks omitted.) Finan v. Finan, 100 Conn.
App. 297, 310, 918 A.2d 910 (2007), rev’d on other
grounds, 287 Conn. 491, 949 A.2d 468 (2008).
In the present appeal, the trial court did not abuse
its discretion by limiting the duration of the defendant’s
alimony award to the duration of the plaintiff’s owner-
ship of the LLC. It is well established that the trial court
in a dissolution action has discretion to order a time
limited alimony award. See, e.g., Finan v. Finan, supra,
100 Conn. App. 310–11 (time limited alimony is often
awarded). Although such time limited awards are often
awarded to provide interim support while one party
acquires new skills and education to facilitate financial
self-sufficiency, such awards are not limited to that
purpose and are ‘‘also appropriately awarded to provide
interim support until a future event occurs that makes
such support [more or] less necessary or unnecessary.’’
(Internal quotation marks omitted.) Id., 310; see also
Mongillo v. Mongillo, 69 Conn. App. 472, 478, 794 A.2d
1054, cert. denied, 261 Conn. 928, 806 A.2d 1065 (2002).
Additionally, where an alimony award is modifiable as
to amount or duration, any prejudice caused by the
time limitation of the alimony award can be mitigated
by timely filing a motion for modification of the alimony
award. See Mongillo v. Mongillo, supra, 479.
The record in this appeal reveals sufficient evidence
to support the trial court’s limitation of the alimony
award to the duration of the plaintiff’s ownership of
the LLC, with no limitation on a future modification of
the alimony award. The record reveals that the court
reasonably viewed the alimony issue as closely tied to
both the duration of the plaintiff’s income from the LLC
and this income source’s relationship to the parties’
retirement plans. It is therefore necessary to understand
how the plaintiff derives income from the LLC and for
what duration this income can be reasonably expected
to continue.
The plaintiff’s work at the LLC consists of serving as
a middleman selling securities, insurance, and other
financial products offered by a separate company called
Investicore, which the plaintiff does not own. When the
plaintiff sells one of these products, he has the option
to select how he is compensated. He has structured his
transactions so that he receives a smaller payment upon
sale of the product in exchange for receiving a continu-
ing percentage of premiums or fees so long as the cus-
tomer retains that product. The continued percentage
payments are called ‘‘trails income,’’ and over time, it
has become the majority of his income. The trails
income from a particular product ceases whenever a
client discontinues a subscription to a product, which
in turn can cause the value of the plaintiff’s portfolio
of trails income to fluctuate. The plaintiff deliberately
chose to structure his transactions this way in order to
provide a continuing income stream during his and the
defendant’s retirement.
Both parties are now at or approaching retirement
age and the plaintiff testified that he has begun prepar-
ing for retirement. The plaintiff’s plan is, over the course
of the next few years, to bring on one or two new
associates, train them to take over the LLC, and then
sell the LLC to those associates. The sale price of the
LLC is expected to account for the projected future
value of the trails income portfolio, which will be trans-
ferred to the new owner. In this industry, the value of
the LLC is almost entirely based on the value of that
portfolio. In the interim, the plaintiff is working to gen-
erate new sales, and consequently new trails income,
in order to maintain the value of the portfolio as older
trails lapse. Importantly, the timeline for this transition
and the specific details of the LLC sale are undeter-
mined and this plan simply represents the parties’ cur-
rent expectations.
Under the trial court’s order, the parties will share
equally in the net proceeds from the sale of the LLC.
Because the sale price of the LLC is expected to be
based substantially on the projected future value of the
trails portfolio, it is reasonable to anticipate that the
court’s order ensures that both parties receive an equal
share of the income they expected to receive in retire-
ment from the trails income. However, the defendant
argues the court’s order leaves her at risk of losing her
expected retirement income from the trails portfolio
because, under the order, the plaintiff could structure
the sale so that the majority of the sale proceeds are
paid to him in the form of consulting fees, or some
similar arrangement, after the business has been trans-
ferred. She speculates that because the alimony award
terminates at the sale and the court’s order only entitles
her to a share of the sale proceeds, she risks losing the
retirement income that she expected from the trails
portfolio, and this fact renders the court’s order unrea-
sonable and an abuse of discretion. We conclude these
fears are speculative and unfounded.
The trial court’s orders governing the sale of the LLC
set clear ground rules designed to protect the defen-
dant’s interests. These ground rules are important
because the timeline and details of the LLC sale are
uncertain. As the plaintiff prepares the LLC for sale,
the defendant has the right to inspect the LLC’s bank
records, tax returns, and other financial records as nec-
essary to insure that the plaintiff is proceeding in good
faith. At least thirty days prior to any contemplated
transfer or sale of a client, business asset, or the LLC
itself, the defendant is entitled to a complete written
explanation of the transaction. When the plaintiff sells
the LLC, it must be an arm’s length transaction at fair
market value. Finally, the court expressly retained juris-
diction over the sale to ensure compliance with these
guidelines and to ensure that the sale effectuates the
court’s intent for the equitable division of assets
between the parties. These precautions may be reason-
ably expected to protect the defendant’s interests in
the future value of the trails portfolio, despite the fact
that the exact details of the LLC sale cannot now be
predicted with certainty.
In light of the evidence in the record, we conclude
that it was reasonable, and therefore not an abuse of
discretion, for the trial court to conclude that it was
appropriate to order a time limited or contingent ali-
mony award with no limitations on future modification.
Indeed, after hearing reargument on the alimony issue,
the court stated that the determining factor in resolving
the defendant’s alimony complaints was the first sen-
tence of General Statutes § 46b-86 (a), which provides
that an alimony decree is modifiable unless the order
expressly precludes modification. We agree.
The court explained: ‘‘I never precluded modification
of the alimony order anticipating that there were
future—possible future events that could come about
that would require a second look. . . . I tried to devise
a baseline [for the LLC sale] . . . [an] arm’s length
transaction and fair market value that would signal a
future court as to . . . this court’s intention. . . . [I]f
there are any financial . . . shenanigans, that’s going
to be explored fully by one side or the other at that
future date with a factual underpinning [regarding the
LLC sale], not any speculation that we could put for-
ward now. And the sale of the business wouldn’t be
the only aspect of the decision in play at that time. The
alimony might be in play at that time, because it is
specifically not made nonmodifiable. If the circum-
stances warrant it, it was this court’s intention that the
alimony could be looked at again, not after the fact,
but at the time of the sale . . . . The termination of
the alimony at the sale of [the] business acknowledges
the testimony as to what that trails income was for. It
was reserved and set aside for the future, specifically.
The sale of [the] business, at an arm’s length transaction
at fair market value, I think, provides [the defendant]
with the court’s intended future, half of whatever [the]
business accumulated at the time.’’
This record shows that the trial court understood the
significance of the trails income, not just as the parties’
immediate income but also as an expected substantial
income stream for retirement. The court’s explanation
at the reargument hearing is clear that the posttrial
orders were designed to protect the defendant’s inter-
ests in that future trails income by setting standards
for the sale of the business and providing her with
an avenue to seek continued alimony should that be
appropriate. Accordingly, we conclude that the trial
court did not abuse its discretion and reasonably deter-
mined that a time limited or contingent alimony award
was appropriate.
The judgment is affirmed.
In this opinion the other judges concurred.
1
We note that while the parties in this appeal refer to the alimony award
as time limited, it would be more precise to describe the award as having
a contingent termination provision. The termination of alimony is contingent
upon the occurrence of an event, namely, the sale of the business. It is
possible, though unlikely, that this contingent termination event may never
occur, in which case the alimony award would be, by its terms, indefinite.
In the present matter, the triggering event is firmly expected by both parties
within the next several years and we therefore will follow the parties’
example in referring to the award as time limited. Moreover, this distinction
does not substantively affect our analysis in this matter.
2
The court’s orders also provided for the division of several vehicles and
personal property that are not relevant to the claims raised by the defendant
in this appeal.