Brown v. Brown, 31801.

130 Conn.App. 522

24 A.3d 1261

Gary BROWN

v.Karen BROWN.

No. 31801.

Appellate Court of Connecticut.

Argued May 26, 2011.Decided Aug. 2, 2011.

Michael S. Taylor, with whom was Kenneth J. Bartschi, Hartford, for the appellant (plaintiff).David R. Schaefer, with whom was Sean M. Fisher, New Haven, for the appellee (defendant).GRUENDEL, LAVINE and BEAR, Js.GRUENDEL, J.

In this marital dissolution action, the plaintiff, Gary Brown, appeals from the judgment of the trial court with respect to the court's financial orders. On appeal, the plaintiff claims that the court abused its discretion by (1) awarding the defendant, Karen Brown, $20,000 in monthly alimony payments without sufficient evidence of his income and (2) excluding evidence regarding the state of his financial condition at the time of trial. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The parties married on November 28,1982, in Woodbridge. On November 5, 2009, the court rendered judgment dissolving the parties' marriage and entered related financial orders.¹ By the time of the parties' divorce, the plaintiff had enjoyed a successful career as a prodigious and highly competent entrepreneur, particularly within the real estate development market.² As documented by his financial affidavit, the total value of the plaintiff's assets equaled approximately $3.1 million as of May, 2009, and it was undisputed that for the four year period immediately preceding their divorce, the parties lived on between $600,000 and $1 million of annual, tax free cash withdrawals from the plaintiff's businesses and investments, which the court, in its memorandum of decision, explicitly deemed as “income.” ³ The plaintiff also testified that from September, 2007, through December, 2008, he provided the defendant with at least $40,000 per month for her personal expenses.⁴

During the underlying dissolution trial before the court in May and June, 2009, the plaintiff claimed that he had limited income and that his business ventures left him little in terms of overall asset value. Specifically, the plaintiff argued that, beginning in September, 2008, his extensive business investments, which previously had been of substantial value, now had limited worth and he was considering bankruptcy. Thus, the plaintiff maintained that he had no ability to provide the defendant with financial support in the form of alimony or otherwise. Nonetheless, in its November 5, 2009 memorandum of decision, the court explicitly determined that “much of the plaintiff's testimony as to the current status of his businesses as well as the future status of same can be considered self-serving.” ⁵ As the court described, not only was the plaintiff's business debt “grossly exaggerated,” but, “[s]ince the [parties'] separation [in early 2008, the plaintiff] has had an incomparable lifestyle, [including] expensive and extensive travel and lavish living expenses.” Accordingly, having “considered ... the criteria set forth in [ General Statutes §§] 46b–81 and 46b–82 ... as well as ... the parties' gross and net income[s][and] their assets and liabilities,” the court ordered, inter alia, that the plaintiff pay the defendant $20,000 in monthly, tax free alimony.⁶ Further, the court ordered that the plaintiff's alimony obligation was to be nonmodifiable until he paid the defendant $2 million toward the amount due her for her beneficial ownership interest in the plaintiff's real estate properties. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly awarded the defendant $20,000 in monthly alimony payments without sufficient evidence of his income. Specifically, the plaintiff claims that in the absence of any evidence as to either his earned income or earning capacity at the time of the dissolution judgment and, in light of the court's failure to articulate any amount of income attributable to him, there was no evidentiary basis to justify the court's alimony award. We are not persuaded.

“Because the plaintiff's first claim on appeal challenges the factual bases of the financial orders rendered by the court at the time it dissolved the marriage, we review that claim under the abuse of discretion standard. In fashioning its financial orders, the court has broad discretion, and [j]udicial review of a trial court's exercise of [this] broad discretion ... is limited to the questions of whether the ... court correctly applied the law and could reasonably have concluded as it did.... In making those determinations, we allow every reasonable presumption ... in favor of the correctness of [the trial court's] action.... That standard of review reflects the sound policy that the trial court has the unique opportunity to view the parties and their testimony, and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, including such factors as the demeanor and the attitude of the parties.” (Internal quotation marks omitted.) Wallbeoff v. Wallbeoff, 113 Conn.App. 107, 110, 965 A.2d 571 (2009).

“In dissolution proceedings, the court must fashion its financial orders in accordance with the criteria set forth in ... § 46b–81 (division of marital property), ... § 46b–82 (alimony) and [General Statutes] § 46b–84 (child support). All three statutory provisions require consideration of the parties' amount and sources of income in determining the appropriate division of property and size of any child support or alimony award....” (Internal quotation marks omitted.) Picton v. Picton, 111 Conn.App. 143, 157–58, 958 A.2d 763 (2008), cert. denied, 290 Conn. 905, 962 A.2d 794 (2009). With respect to the present claim concerning alimony, General Statutes § 46b–82 (a) provides in relevant part: “In determining whether alimony should be awarded, and the duration and amount of the award, the court shall hear witnesses, if any, of each party ... shall consider the length of the marriage ... the age ... station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 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.” (Citation omitted; internal quotation marks omitted.) Kaczynski v. Kaczynski, 124 Conn.App. 204, 211, 3 A.3d 1034 (2010).

Finally, “[o]ur Supreme Court has emphasized the importance of using an expansive definition of income when formulating financial orders during the course of marriage dissolution proceedings.... Adopting a flexible definition of income, the court has explained, ensures that each spouse fulfills his or her continuing duty to support one another and each receives his or her equitable share of the marital assets.” (Internal quotation marks omitted.) Picton v. Picton, supra, 111 Conn.App. at 158, 958 A.2d 763. In this regard, “[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.) Carasso v. Carasso, 80 Conn.App. 299, 304, 834 A.2d 793 (2003), cert. denied, 267 Conn. 913, 840 A.2d 1174 (2004). Moreover, “[w]here a party through his own wrongful conduct limits the financial evidence available to the court, that party cannot complain about the resulting calculation of a monetary award.” (Internal quotation marks omitted.) Palazzo v. Palazzo, 9 Conn.App. 486, 488–89, 519 A.2d 1230 (1987).

Here, the plaintiff maintains that the court's alimony award was improper because there was no evidence of his “past or present income ... and no finding of any amount of income” attributable to him at the time of the parties' divorce. The record reveals unequivocally, however, that in the four years immediately preceding the divorce, the parties lived on between $600,000 and $1 million of annual, tax free “income” and, from September, 2007, to December, 2008, the plaintiff paid the defendant a minimum of $40,000 per month for her personal expenses. In contrast to the plaintiff's claim, his pretrial claims for relief, dated December 12, 2008, explicitly represent that he has “typically drawn approximately $500,000 [to] $600,000 per year” from his various assets. As the court noted, the parties' lifestyle, as documented by their expenditures, was “incomparable” in that “nothing was spared.” Although the plaintiff's financial affidavit discloses “$0.00” in net monthly income, such disclosure is consistent with the plaintiff's utilization of capital withdrawals from his numerous business assets to avoid receipt of taxable income. Additionally, we decline to accept the plaintiff's principal argument, raised both at trial and before this court, that, as of September, 2008, the deterioration in the value of his business investments deprived him of the ability to provide the defendant with financial support in the form of alimony or otherwise. The plaintiff's argument in this regard is belied both by evidence of the total value of his assets, and the court's specific determination that much of the plaintiff's testimony in support of his argument was “self-serving,” particularly given the fact that “he takes money as he needs it from the companies he runs.” Our review of the court's memorandum of decision indicates that, even assuming the veracity of the plaintiff's argument that there has been a “decrease of income and assets,” the plaintiff has continued to live “an incomparable...