O’Neil v. O’Neil, 209 Conn. App. 165 (2021) (abuse of discretion; net earning capacity; alimony non-modifiable on cohabitation; relocation at time of judgment)
Officially released December 7, 2021.
In Short: The trial court has discretion to make findings of net earning capacity when provided sufficient evidence; the trial court has the authority to make alimony non-modifiable, including orders that remove application of the cohabitation statute; the trial court was upheld in permitting a prospective relocation upon sale of residence under the best interests of the child standard at time of Judgment.
The parties were married in 2003 and had five children. They lived in Wilton and the children attended public schools in Wilton.
The trial court found that Husband worked overseeing construction. Wife had worked as a secretary prior to the birth of the five children. Husband argued Wife had an earning capacity equal to $38,000, but the trial court was not persuaded. Husband’s testimony and financial affidavit indicated that he had no earned income. The trial court found an earning capacity for Husband of at least $101,000 per year based on the 2013 through 2018 tax returns and Husband’s testimony.
The trial court found that the marital residence was in foreclosure proceedings and had not sold due to lack of cooperation from Husband. The trial court ordered the property sold and any net proceeds awarded to Wife. The trial court permitted Wife’s request to relocate a reasonable distance for housing when vacating the marital residence.
The trial court ordered child support in the amount of $477/week and alimony in the amount of $280/week until Wife vacates the marital residence and, thereafter, $1,000/week for ten years from date of Judgment. The trial court ordered that cohabitation will not impact alimony because it was anticipated that Wife would continue to cohabit with her father who would help with her living expenses.
Husband appealed. The Appellate Court reviewed all of Husband’s claims under the abuse of discretion standard.
Husband’s first claim is that the trial court awarded periodic alimony and child support that “would far exceed the net income resulting from $101,000 of gross earning capacity.” The trial court articulated that it found Husband’s net earning capacity to be $101,000, that Husband’s testimony was evasive and not credible, and indicated it based its findings on a combination of Husband’s testimony about gross receipts and the amount of work that he bid out, as well as tax returns and summaries prepared by Husband’s accountant. The Appellate Court found, based on a finding of net income of $101,000, there was no abuse of discretion and no clearly erroneous factual findings, further noting that the tax returns and other evidence justified the finding of net $101,000 earning capacity.
Husband’s second claim was that the trial court improperly ordered him to pay $1,000/week alimony beginning when Wife vacates the marital residence, arguing that there was no evidence regarding her needs after she vacates. The Appellate Court concluded that the record supported this award. The trial court knew that Wife’s expenses would be lower while she resided in the marital residence and knew what her needs would be to accommodate her five children within a reasonable distance.
Husband’s third claim on appeal was that the trial court abused its discretion in precluding modification of alimony based on cohabitation under C.G.S. § 46b-86(b). The Appellate Court noted that it is “a well-settled principle of matrimonial law that courts have the authority under § 46b-86 to preclude the modification of alimony awards.” Here, the trial court found that Wife provides care for her eighty-four-year-old father, who provides some assistance. The Appellate Court found no abuse of discretion in the trial court’s recognition of this arrangement and use of its equitable powers regarding limiting modification of alimony.
Husband’s fourth claim on appeal was that the trial court erred by awarding the marital residence to Wife without specifying that she take it subject to any liens on the property. The Appellate Court found that Husband misunderstood the court’s order. Wife was entitled to any net equity following the sale. There was no merit to Husband’s claim.
Husband’s fifth claim on appeal was that the trial court abused its discretion in permitting Wife to relocate a reasonable distance without considering C.G.S. § 46b-56d, which provides for factors to consider when deciding a postjudgment relocation. The Appellate Court held that relocation issues that arise at the initial dissolution of marriage are governed by the best interest of the child standard from C.G.S. § 46b-56. The Appellate Court found there was sufficient evidence in the record to support the decision on the best interests of the child standard.
Husband’s sixth claim on appeal was that the trial court erred in failing to specify that his alimony obligations terminate ten years after the date of dissolution judgment. The Appellate Court made extraordinarily short work of this claim, as the trial court clearly stated that the alimony would end ten years from date of judgment or when Wife died or remarried, and there was no ambiguity.
The Judgment was affirmed.
