Keller v. Keller

167 Conn.App. 138

142 A.3d 1197

Beth KELLER

v.Richard KELLER.

No. 37263

No. 37560.

Appellate Court of Connecticut.

Argued May 10, 2016.

Decided July 26, 2016.

Karen L. Dowd, with whom was Brendon P. Levesque, Hartford, for the appellant (plaintiff).

Steven R. Dembo, Hartford, with whom were Caitlin E. Kozloski and, on the brief, P. Jo Anne Burgh, Glastonbury, for the appellee (defendant).

BEACH, MULLINS and MIHALAKOS, Js.

MIHALAKOS, J.

The plaintiff, Beth Keller, appeals from the judgment of the trial court dissolving her marriage to the defendant, Richard Keller, and entering related financial orders. On appeal, the plaintiff claims that the trial court improperly (1) relied on gross income in making its financial orders, (2) concluded that the plaintiff had engaged in litigation misconduct and bad faith litigation, and (3) imputed income of $72,000 to the plaintiff. The plaintiff also claims that the totality of the trial court's orders constituted an abuse of discretion. We affirm the judgment of the trial court.

We first set forth the following relevant facts and procedural history. The parties married on August 15, 1992, and the plaintiff brought this dissolution action in May, 2011. The trial court issued pendente lite orders in early August, 2011, which were appealed to this court. We reversed the judgment and remanded the case for further proceedings. See Keller v. Keller, 141 Conn.App. 681, 685, 64 A.3d 776 (2013). The court held hearings on remand and issued new pendente lite orders in an August 6, 2013 memorandum of decision. This decision was then the subject of a second appeal. Following the defendant's motions for articulation and review and pursuant to an order of this court, the trial court issued an articulation of its August 6, 2013 decision on January 29, 2014. It subsequently dissolved the parties' marriage and issued final orders on July 9, 2014. We then dismissed the appeal of the August 6, 2013 judgment as moot.

In its July 9, 2014 memorandum of decision, the trial court found the following relevant facts.¹ The parties were married on August 15, 1992, and during the course of their marriage had three children. As of July 9, 2014, the children were eighteen, fifteen, and twelve.

The plaintiff obtained a master's degree in clinical nutrition from Boston University and worked in public relations doing food and nutrition marketing. She had only worked outside the home in a limited capacity between the births of the parties' first and second children, and after the birth of their second child did not work outside of the home for the fourteen years prior to filing for dissolution. Her recent attempts to find meaningful employment have met with limited success. At the time of the July 9, 2014 memorandum of decision she was earning $500 per month, and the court determined that she had an earning capacity of $26,000 per year.

The defendant was educated as a lawyer and spent most of his adult career in finance. Up to the end of 2010, he was the owner of Angler, a hedge fund that he started in 2006, which, at its peak, had between 50 and 100 investors and managed up to $150 million in assets. The fund crashed in the fall of 2008 and finally was closed out effective December 31, 2010. He lost a substantial part of the family's wealth along with that of his investors. The defendant, in an attempt to develop investment opportunities, has continued to maintain the lifestyle of a successful hedge fund manager despite his very limited income and resources. The court heard varied expert opinions regarding his likelihood of success, with the plaintiff's expert predicting that he had an earning capacity between $800,000 and $1.5 million per year, and the defendant's expert predicting that his likely employment would be as an investment analyst making between $60,000 and $175,000 per year. The court determined that he had an earning capacity of $175,000, but also noted that his finances could improve dramatically over time.

Both parties had received significant amounts of money, primarily from their parents, which they classified as loans. They used this money to fund this litigation and to fund their lifestyles. The trial court determined the plaintiff had received $30,000 per month from her parents, and imputed $78,000 of it per year as income. The defendant owed $651,498 to his parents, but the court did not impute any income based on this amount.

The court entered the following relevant financial orders on July 9, 2014. It ordered the defendant to pay the plaintiff as periodic alimony the sum of $3000 per month. It ordered that the plaintiff transfer her interest in the family home, the present equity value being approximately $1,139,000, to the defendant via quitclaim deed, and that the defendant pay the plaintiff $225,000. It ordered that the defendant pay the plaintiff 90 percent of any money paid to him from an undistributed “carried interest” account with Sandler Entities (Sandler), a New York investment firm for which he previously had worked, the remaining balance of which was $639,200.² Having awarded custody of the children to the defendant and having found that the parties exceeded the maximum combined net weekly income under the child support guidelines, the court declined to order the plaintiff to pay child support. Finally, it ordered “that the plaintiff shall pay to the defendant the sum of $25,000 toward his legal fees expended in work done regarding her litigation misconduct....” This appeal followed. Additional facts will be set forth as necessary.

We first set forth our standard of review. “We will not reverse a trial court's rulings regarding financial orders unless the court incorrectly applied the law or could not reasonably have concluded as it did.... A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria.... In reviewing the trial court's decision under [an abuse of discretion] standard, we are cognizant that [t]he issues involving financial orders are entirely interwoven. The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other....

“A reviewing court must indulge every reasonable presumption in favor of the correctness of the trial court's action to determine ultimately whether the court could reasonably conclude as it did.... This standard of review reflects the sound policy that the trial court has the opportunity to view the parties first hand and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, in which such personal factors ... as the demeanor and the attitude of the parties are so significant.” (Internal quotation marks omitted.) Cimino v. Cimino, 155 Conn.App. 298, 302–303, 109 A.3d 546, cert. denied, 316 Conn. 912, 111 A.3d 886 (2015).

I

The plaintiff claims that the court improperly relied on gross income rather than net income in making its financial orders. She asserts that because the court found that the plaintiff had a yearly gross income of $78,000 and the defendant had a yearly gross income of $175,000, it clearly based its financial orders on gross income. The defendant replies that the court specifically referenced net income when applying the child support guidelines, had information from which it could calculate net income, and was otherwise silent regarding whether it was using gross or net income. The defendant urges us to conclude that the court properly used net income. We agree with the defendant.

“It is well settled that a court must base child support and alimony orders on the available net income of the parties, not gross income.” Morris v. Morris, 262 Conn. 299, 306, 811 A.2d 1283 (2003). Where “the trial court expressly and affirmatively state[s] that it relied on gross income in determining the defendant's support obligation, the trial court abuse[s] its discretion because it applied the wrong legal standard.” Id., at 307, 811 A.2d 1283. On the other hand, where the trial court states that it is relying on “all of the relevant information, including the parties' financial affidavits and their child support guideline worksheets, both of which [include] the parties' net incomes, as well as the testimony of the parties”; (internal quotation marks omitted) Kelman v. Kelman, 86 Conn.App. 120, 123–24, 860 A.2d 292 (2004), cert. denied, 273 Conn. 911, 870 A.2d 1079 (2005) ; we may conclude that the trial court properly used net income. This may be true even if an order “is expressed as a function of the parties' gross earnings.” Hughes v. Hughes, 95 Conn.App. 200, 207, 895 A.2d 274, cert. denied, 280 Conn. 902, 907 A.2d 90 (2006). “[W]e differentiate between an order that is a function of gross income and one that is based on gross income.... [T]he term ‘based’ as used in this context connotes an order that only takes into consideration the parties' gross income and not the parties' net income. Consequently, an order that takes cognizance of the parties' disposable incomes may be proper even if it is expressed as a function of the parties' gross earnings.” Id. In short, although “[i]t is well settled that a court must base its child support and alimony orders on the available net income of the parties, not gross income ... [w]hether or not an order falls within this prescription must be analyzed on a case-by-case basis. Thus, while our decisional law in this regard consistently affirms the basic tenet that support and alimony orders must be based on net income, the proper application of this principle is context specific.” (Internal quotation marks omitted.) Cleary v. Cleary, 103 Conn.App. 798, 801, 930 A.2d 811 (2007).

In the July 9, 2014 memorandum of decision, the court found the plaintiff's earning capacity to be $26,000 gross per year, plus reoccurring gifts in the amount of...