Marshall v. Marshall

311 A.3d 235

224 Conn.App. 45

Margaret MARSHALL

v.John MARSHALL II

(AC 45727)

Appellate Court of Connecticut.

Argued December 6-2023

Officially Released February 27-2024

Campbell D. Barrett-with whom were Stacie L. Provencher-and-on the brief-Dana M. Hrelic-Hartford-for the appellant (defendant).

James P. Sexton-Hartford-with whom were Thomas D. Colin-Greenwich-and-on the brief-Gail Oakley Pratt and John R. Weikart-for the appellee (plaintiff).

Alvord-Cradle and Westbrook-Js.

WESTBROOK-J.

₄₇In this marital dissolution action-the defendant-John Marshall II-appeals from the judgment of the trial court dissolving his marriage to the plaintiff-Margaret Marshall-challenging the factual and legal bases for the court’s alimony and child support orders. On appeal-the defendant claims that the court improperly (1) relied on the plaintiffs allegedly manipulated 2020 income in fashioning the alimony and child support orders-rather than relying on the plaintiff’s 2021 partnership distributions-and-alternatively-(2) based those support orders on the plaintiff’s reported income rather than on her earning capacity. We disagree and-accordingly-affirm the judgment of the trial court.

The following facts-which were either found by the court or are otherwise undisputed-and procedural history are relevant to our resolution of this appeal. The plaintiff and the defendant were married on September 9-2000. Three children were born of the marriage-two ₄₈of whom were minors at the time of the trial. The plaintiff filed for divorce on October 24-2017.

At the time of the trial-the plaintiff was forty-six years old and worked as an equity partner at M2O-an investment banking firm that she cofounded in 2012. As a partner of M2O-the plaintiff does not receive a base salary or a draw but-rather-receives a percentage of the partnership’s yearly net profits in the form of distributions.¹ Each year-the partners of M2O meet to determine the percentage of yearly net profits that each partner will receive.² Each partner then receives distributions from M2O equal to his or her percentage of the partnership’s net profits. The distributions are not received on a set schedule but-rather-are received sporadically throughout the year-usually toward the end of the year or the beginning of the following year.³ ₄₉The plaintiff’s percent- age of net profit was 21 percent in 2018-15 percent in 2019-12 percent in 2020-and 11 percent in 2021. She received distributions totaling $2.4 million in 2018-$1.2 million in 2019-$1.3 million in 2020-and $2.3 million in 2021.

The plaintiff receives a Schedule K-1 (K1) from M2O every year.⁴ The plaintiff refers to her annual K-1 to determine her net income-which reflects the adjustments to the partnership distributions made by M2O’s accountants.⁵

₅₀If February-2022-near the end of the trial-the plaintiff filed a financial affidavit that reflected her 2020 partnership income as shown on her K-1. The plaintiff relied on her 2020 K-1 because she had not yet received the 2021 K-1 by the time of trial.⁶

The February-2022 financial affidavit showed a gross weekly income of $20,994 and a net weekly income of $12,183.

At the time of trial-the defendant was fifty-three years old and was unemployed. He was last employed in 2016 as a senior managing director at Focuspoint Private Capital. Although the defendant testified that he was unable to find employment due to a felony conviction in 2013,⁷ he was let go from his job at Focuspoint Private Capital in 2016 because of his poor job performance rather than his conviction.⁸ The defendant has had several years to seek employment following the commencement of this action but has failed to do so. The defendant has an earning capacity of $350,000 per year.

Following a trial that began on February 17-2021-and which was primarily held remotely due to the GOVID-19 pandemic-the court-M. Moore-issued a thorough ₅₁memorandum of decision on June 13-2022-dissolving the parties’ marriage and issuing-inter alia-alimony and child support orders.⁹ The court concluded that the parties’ marriage had broken down irretrievably and that the defendant was more at fault than the plaintiff for the marital breakdown. The court found that "the defendant’s failure to continue to make a financial contribution to the family and his unilateral decision not to find employment was the primary reason for the breakdown of the marriage."

The court ordered the plaintiff to pay alimony to the defendant in the amount of $1500 per week "until the first to occur of the following events: the death of either party-the defendant’s remarriage or cohabitation pursuant to statute and case law-or five years from the date of dissolution." The court did not order the defendant to pay alimony to the plaintiff. In constructing this alimony order-the court "reviewed the standard of living enjoyed by the parties-including the standard of living prior to the filing of the dissolution of marriage-the standard of living after the filing of the dissolution of marriage-and all of the factors incorporated in [General Statutes] § 46b-82 and relevant case law." The court’s determination of the duration of the alimony award to the defendant was based on "the court’s consideration of all of the factors set forth in … § 46b-82 and its determination that this period of time is reasonable to allow the defendant to fulfill his responsibilities under the parenting plan; provide the necessary income for him to become financially independent and self-sufficient in light of his age-educational background and work history; and allow him to maintain a reasonable standard of living that he enjoyed during the marriage while finding full-time employment at a level he had during the marriage."

[1]₅₂The court additionally ordered the parties to share joint legal and physical custody of the parties’ minor children.¹⁰ To determine the amount of child support to be paid-the court reviewed General Statutes § 46b-84; the Child Support and Arrearage Guidelines (guidelines); relevant case law; the evidence at trial-including the testimony of the parties; the guidelines’ worksheets and financial affidavits submitted by the parties; and the expenses of the children. The court determined that the plaintiff’s net weekly income is significantly greater than the guidelines’ maximum net income of $4000.¹¹ After considering the proposed presumptive child support amount submitted by each party-the court concluded that "the presumptive minimum weekly child support to be paid from the plaintiff to the defendant [was] $708 per week." The court ultimately ordered the plaintiff to pay the defendant $1500 per week in child support. The court found this figure reasonable "in light of the [principles] in the Connecticut child support guidelines, the needs of the children-and § 46b-84." The court ordered the plaintiff to "pay child support for each minor child until the child reaches the age of eighteen or graduates high school-whichever occurs later-but in no event past the child’s nineteenth birthday."

On July 5-2022-the defendant filed motions for clarification and for reconsideration and reargument. In his motion for clarification-the defendant sought clarification regarding-inter alia-the current net incomes of the parties¹² and the amount of income that the court ₅₃attributed to the plaintiff at the time of dissolution.¹³ The plaintiff filed an objection to the defendant’s motion for reconsideration and reargument on July 8-2022-arguing that the defendant "provides no basis whatsoever-legal or factual-to warrant reconsideration or reargument on any of these subjects-and his requests are very baldly seeking the proverbial second bite of the apple." The court denied the defendant’s motions on July 26-2022. This appeal followed. Additional facts will be set forth as necessary.

[2] The defendant claims on appeal that the court abused its discretion in determining alimony and child support by relying on (1) the plaintiff’s February-2022 financial affidavit-which reflected her 2020 actual earned income of $1.3 million-rather than relying on the evidence of the approximately $2.3 million in distributions the plaintiff received in 2021 as a partner of M2O; and (2) the plaintiff’s income rather than determining and relying upon the plaintiff’s earning capacity. The defendant argues that these alleged abuses of discretion-"separately and together-implicate the mosaic of the court’s financial orders and warrant reversal with direction to remand for a new trial on the same."¹⁴ The plaintiff counters that ₅₄there was no abuse of discretion and that-therefore-the judgment of the court should be affirmed. We agree with the plaintiff.

[3–8] As a preliminary matter-we set forth our standard of review and other relevant legal principles. 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 presented. … It is within the province of the trial court to find facts and draw proper inferences from the evidence 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. … [T]o conclude that the trial court abused its discretion-we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. … Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. … 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. …

[9–12] "Further-[w]e have repeatedly recognized...