M.S. v. P.S., 203 Conn. App. 377 (2021) (the trial court has extremely broad discretion to enter disparate support orders)
Officially released March 23, 2021
In Short: A well-reasoned trial court decision will be given extremely broad discretion. An award of 90% of Husband’s net income to Wife in the form of child support and alimony did not constitute abuse of discretion in light of the duration of alimony, award of assets, and other factors in the case.
The parties were married in 2008 and had two children. In 2017 Wife initiated a dissolution action and a restraining order application pursuant to § 46b-15. The trial court entered a restraining order after a three-day evidentiary hearing. Wife filed a motion for pendente lite counsel fees. After a two-day evidentiary hearing the trial court ordered Husband to pay $75k in counsel fees. Wife filed an additional motion for counsel fees, and, after an eight-day trial, the court ordered an additional $15k in counsel fees.
The trial court issued a memorandum of decision making the following factual findings:
Wife sought to pursue master’s and doctorate degrees in clinical psychology at the University of Albany and her application had been accepted. Her degrees would take six years and she could afford the tuition if she were able to establish New York residency. The degrees would provide Wife a greater opportunity for employment and income. Wife had no income at the time of dissolution. Wife’s financial affidavit reflected liabilities of $167k, almost all of which were debts to her counsel, of which Husband had been ordered to pay $75k and had paid $10k to date. Wife had previously taken $37k from her IRA to pay legal fees and had $7k remaining in retirement.
Husband had an engineering bachelor’s and an MBA. Husband’s compensation in 2017 was $133k. During the year of the divorce, he experienced a decrease in income, the cause for which the trial court found to be his decision to work less. Husband had an earning capacity of $110k per year. Husband had liabilities of $128k including taxes for years in which he failed to file returns and the counsel fees he was ordered to pay. He possessed stocks, bonds and mutual funds valued at $116k and had $112k in retirement. Husband had dividend and interest income that failed to appear on many of his financial affidavits. At the time of the marriage Husband possessed assets in Brazil with fair market value of nearly $1m. At time of divorce, Husband retained over $200k of those assets, including one he failed to disclose.
The parties owned a home in Newtown, 20% of the purchase price for which was paid for by the parties and 80% of which was paid for by Husband’s father, currently valued at $575k with no mortgage. The trial court found that the parties had always lived beyond their means and relied on Husband’s assets and gifts from his father to cover the shortfall, although the gifts were not reliably recurring enough to be assigned as income.
The trial court entered the following orders:
Husband was ordered to pay $390/week child support ($20k/year) and 70% of unreimbursed medical costs and qualified daycare. Husband was ordered to provide medical and dental insurance. Husband was ordered to pay $600/week in alimony ($31k/year) for six years, such term to be non-extendable. The trial court determined the amount to be insufficient to maintain the standard of living from the marriage and declared that an increase in Husband’s income would justify modification of the alimony order. The marital home was awarded to Wife, she was ordered to sell it, and Husband was to receive $200k from the net proceeds of the sale, with the balance to Wife. Each party retained his/her own financial accounts, with the exception of Husband’s retirement accounts, which were divided equally. Husband retained all of his Brazilian assets. Each party was responsible for his/her own liabilities.
The trial court found that the pendente lite custody agreement was in the best interests of the children, with the exception of the relocation provision. The trial court modified that provision to allow that Wife could relocate to New York provided it was not more than thirty-five miles from her current residence, rather than restricting her to Connecticut and thirty-five miles from Husband’s residence.
Husband appealed the judgment of the trial court awarding Wife counsel fees pendente lite and from the judgment of dissolution, which appeals were consolidated. The trial court articulated that it found Husband had a $110k earning capacity, and net income of $67k after all allowable deductions for child support.
Husband argued on appeal that the trial court abused its discretion by (1) entering an excessive support order that consumes approximately 90% of his net income, leaving him insufficient income for basic needs, (2) permitting Wife to relocate thirty-five miles from her current residence rather than the pendente lite mutually agreed upon thirty-five miles from the opposing party’s current residence, and (3) awarding counsel fees on allegedly excessive and unreasonable bills.
The Appellate Court first set forth the abuse of discretion standard of review.
The Appellate Court found that the trial court’s support order did leave Husband with approximately 10% of his net weekly income. It noted, however, that the division of assets left each party receiving approximately $440k in assets. Husband relied upon Valentine v. Valentine, 149 Conn. App. 799 (2014) and Greco v. Greco, 275 Conn. 348 (2005) in support of his claim of excessive orders. The Appellate Court distinguished both cases based on the duration of the orders in this instance coupled with the assets that Husband received with which he could comply, and found no abuse of discretion.
As to custody and parenting, Husband argued that, in light of the testimony, the trial court’s decision allowing thirty-five-mile relocation from Wife’s residence rather than the opposing party’s residence constituted abuse of discretion. The Appellate Court expressly determined that it was in the children’s best interest that Wife be permitted to relocate to New York, and that it was reasonably and logical to tether the thirty-five mile range from Wife’s current home in Newtown as she was seeking permission to relocate.
As to counsel fees, The Appellate Court noted that the analysis under § 46b-62 is essentially the same as an alimony analysis, and that such awards are made so that a party may not be deprived of rights due to lack of access to funds or so as not to undermine other financial orders. “While the decision as to the liability for payment of such fees can be made in the absence of any evidence of the cost of the work performed . . . the dollar amount of such an award must be determined to be reasonable after an appropriate evidentiary showing.’’ Panganiban v. Panganiban, 54 Conn. App. 634 (1999). Here, the trial court had ample evidence as to the reasonableness of the fees, including two affidavits with attached billing records, and there was nothing to suggest abuse of discretion.
The Judgment was affirmed.
