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Hornung v. Hornung

Supreme Court of Connecticut

September 20, 2016

MARJORIE HORNUNG
v.
ROBERT HORNUNG

          Argued November 3, 2015

          Kenneth J. Bartschi, with whom were Wesley W. Horton, and, on the brief, Richard L. Albrecht and Barbara M. Schellenberg, for the appellant-appellee (defendant).

          Campbell D. Barrett, with whom, on the brief, were Jon T. Kukucka, Brandon B. Fontaine, Wayne Effron and Johanna S. Katz, for the appellee-appellant (plaintiff).

          Rogers, C. J., and Palmer, Zarella, Eveleigh, Espinosa, Robinson and Vertefeuille, Js.

          OPINION

          ROBINSON, J.

         The defendant, Robert Hornung, appeals[1] from the judgment of the trial court setting forth financial orders incident to the dissolution of his marriage to the plaintiff, Marjorie Hornung. In those orders, the trial court directed the defendant to pay to the plaintiff, inter alia, lump sum alimony in the amount of $7.5 million and attorney's fees in the amount of $140, 000. On appeal, the defendant claims that the trial court: (1) improperly rendered a lump sum alimony award that constitutes a property distribution in violation of the parties' prenuptial agreement (agreement); and (2) abused its discretion in awarding attorney's fees to the plaintiff in light of its other awards to her. We disagree with the defendant's claim that the lump sum alimony award is actually an improper property distribution, but agree that the trial court abused its discretion in awarding attorney's fees to the plaintiff. Accordingly, we affirm in part and reverse in part the judgment of the trial court.[2]

         The record reveals the following facts and procedural history. The plaintiff and the defendant were married in Greenwich in 1997 and have four minor children. The defendant earns $970, 000 per year from employment and investments, and received $37 million from the sale of a software program in 2000. The plaintiff, a full-time homemaker and the primary caretaker of the children, presently earns no income. She suffers from a thyroid condition and is borderline diabetic.

         Shortly before their marriage, the parties entered into the agreement. The agreement provided for sole ownership of separate property acquired before the marriage, which would not be subject to equitable distribution in the event of dissolution.[3] Marital assets were to be divided in accordance with a formula based upon the length of the marriage and the number of children. The agreement stated that the issues of alimony and child support would be addressed by the courts.[4]

         In 2011, the plaintiff brought the present action seeking a legal separation, and later amended her complaint to seek a dissolution of the marriage. After trial, the trial court ordered the defendant to pay, inter alia, $40, 000 per month in periodic unallocated alimony and child support, and $7.5 million in lump sum alimony.[5]With respect to the lump sum alimony award, the court noted that ‘‘under all the circumstances [the] award . . . is appropriate to provide for continuing support of the [plaintiff]'' in light of the following: ‘‘[the plaintiff's] health issues; her lack of recent employment; her primary child care responsibilities for four children, which limits her ability to enter the workforce on a full-time basis; and her limited opportunity to acquire assets in the future.''[6] In making the award, the court stated that it considered the factors in the alimony statute, General Statutes § 46b-82, [7] as well as ‘‘other factors which may be appropriate for a just and equitable resolution.'' (Internal quotation marks omitted.) In discussing alimony generally, the court noted that ‘‘both parties . . . made significant contributions to the acquisition, maintenance, and preservation of the family assets, including the real estate.'' The court also ordered the defendant to contribute $100, 000 toward the plaintiff's attorney's fees pursuant to General Statutes § 46b-62, [8] reasoning that ‘‘to require the [plaintiff], who has minimal earning capacity and the responsibility for the primary care of four minor children age nine through fifteen, three of whom have learning issues, to pay these fees from her portion of the financial award . . . would undermine the purposes of [the] same'' and that ‘‘it would be fair and equitable for the [defendant] to pay [those fees].'' The defendant then filed this appeal. See footnote 1 of this opinion.

         The plaintiff subsequently moved for an award of appellate attorney's fees. After a hearing, the trial court ordered the defendant to contribute an additional $40, 000 toward the plaintiff's appellate attorney's fees. The court stated that the plaintiff needed ‘‘reasonable access to the court system [to] defend an appeal that [the defendant] made'' and that she ‘‘does not have ample liquid assets'' or ‘‘resources that are readily available'' to pay the fees because several of the trial court's orders were stayed pending the defendant's appeal. Thereafter, the defendant filed an amended appeal challenging the trial court's award of appellate attorney's fees. Additional facts and procedural history will be set forth as necessary.

         On appeal, the defendant contends that: (1) the lump sum alimony award constitutes a functional property distribution in violation of the agreement; and (2) the trial court abused its discretion in ordering him to pay the plaintiff's attorney's fees. We address each claim in turn.

         I

         The defendant first claims that the lump sum alimony award is actually a property distribution in violation of the agreement because: (1) in making the award, the trial court considered two factors-the plaintiff's opportunity to acquire assets in the future and her contribution to the marital estate-that appear in the property distribution statute, General Statutes § 46b-81, [9] but not the alimony statute, § 46b-82; and (2) the lump sum award is more than necessary for the plaintiff's continued support, thus indicating that it is functionally a property distribution.[10] In response, the plaintiff contends that the trial court properly awarded lump sum alimony, rather than a disguised property distribution, because: (1) the trial court unambiguously characterized the lump sum award as alimony, and retained discretion to consider equitable factors beyond § 46b-82, including those listed in § 46b-81, in making the award; and (2) the award was appropriate in light of the standard of living of the marriage, the substantial assets awarded to the defendant under the agreement, and the equitable factors considered by the trial court. We agree with the plaintiff.

         The question of whether the trial court properly applied the law when fashioning the lump sum alimony award is a question of law subject to plenary review. See Crews v. Crews, 295 Conn. 153, 162, 989 A.2d 1060 (2010). Although financial orders in family matters are generally reviewed for an abuse of discretion; Ross v. Ross, 172 Conn. 269, 275, 374 A.2d 185 (1977); this court applies a less deferential standard ‘‘when the decision of the trial court is based not on an exercise of discretion but on a purported principle of law.'' (Internal quotation marks omitted.) Loughlin v. Loughlin, 280 Conn. 632, 641, 910 A.2d 963 (2006). ‘‘Notwithstanding the great deference accorded the trial court in dissolution proceedings, a trial court's ruling . . . may be reversed if, in the exercise of its discretion, the trial court applies the wrong standard of law.'' Borkowski v. Borkowski, 228 Conn. 729, 740, 638 A.2d 1060 (1994).

         We conclude that the trial court properly awarded lump sum alimony, and not a property distribution in violation of the agreement, for two reasons: (1) the trial court unambiguously characterized the lump sum award as alimony and, as such, its incidental consideration of two factors in § 46b-81, the property distribution statute, does not demonstrate that the award is a functional property distribution; and (2) the fact that the combined alimony and child support awards apparently exceed the plaintiff's claimed expenses does not demonstrate that the award is actually a property distribution, in light of the standard of living of the marriage and the equitable and statutory factors considered by the trial court.[11] See footnote 10 of this opinion. We discuss each rationale in turn.

         A

         First, the trial court consistently described the lump sum award as alimony in its decision, articulation, and comments. From the beginning of its decision, the trial court distinguished between the property distribution allowed under the prenuptial agreement and its broad authority to award alimony.[12] Thereafter, the trial court explained that, ‘‘under all the circumstances, '' the purpose of the lump sum award was to provide ‘‘continuing support'' to the plaintiff-the quintessential purpose of alimony. See, e.g., Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 132, 869 A.2d 164 (2005). The purpose of a property distribution, by contrast, is ‘‘to unscramble existing marital property in order to give each spouse his or her equitable share at the time of dissolution.'' (Internal quotation marks omitted.) Id., 133; see also Blake v. Blake, 211 Conn. 485, 497, 560 A.2d 396 (1989) (‘‘[t]he difference between an assignment of a specific portion of an estate and alimony is in their purposes'' [internal quotation marks omitted]). The trial court made no reference or allusion to this equitable purpose in making the lump sum alimony award, and instead divided the property in accordance with the agreement. The trial court also specifically cited § 46b-82, the alimony statute, and two judicial opinions in which lump sum alimony was properly awarded when making the lump sum alimony award.[13] See Maguire v. Maguire, 222 Conn. 32, 47, 608 A.2d 79 (1992) (‘‘[a]ny ambiguity as to the criteria upon which the court relied for alimony was put to rest [when] the trial court indicated that it had relied upon the criteria in § 46b-82 for its award of alimony'').

         In light of this language, the trial court's mere mention of two factors in the property distribution statute, namely, the plaintiff's opportunity to acquire assets in the future and her contribution to the marital estate, did not render the lump sum award an improper property distribution.[14] See id., 46-47 (trial court did not improperly predicate alimony award on ‘‘impermissible statutory criterion [by] . . . refer[ring] to § 46b-81'' in decision); Blake v. Blake, supra, 211 Conn. 495-99 (trial court's characterization of lump sum payment as alimony in oral decision did not render it alimony, as opposed to property distribution, when court otherwise consistently characterized award as property distribution). In awarding lump sum alimony, the trial court pointed to several considerations, including ‘‘the [plaintiff's] health issues; her lack of recent employment; her primary child care responsibilities for four children, which limits her ability to enter the workforce on a full-time basis; and her limited opportunity to acquire assets in the future.'' (Emphasis added.) The court also noted that throughout the marriage, ‘‘both parties . . . made significant contributions to the acquisition, maintenance, and preservation of the family assets, including the real estate.'' (Emphasis added.)

         We have repeatedly acknowledged that the statutory factors for awarding alimony and distributing property are ‘‘virtually identical.''[15] Sunbury v. Sunbury, 210 Conn. 170, 173-74, 553 A.2d 612 (1989); see also Greco v. Greco, 275 Conn. 348, 360, 880 A.2d 872 (2005) (‘‘essentially identical''); Dombrowski v. Noyes-Dombrowski, supra, 273 Conn. 137 (‘‘ ‘almost identical' ''). We have, further, declined to fault trial courts for considering the two factors that appear in the property distribution statute, but not the alimony statute, when awarding alimony, because dissolution actions are ‘‘essentially equitable in . . . nature''; Robinson v. Robinson, 187 Conn. 70, 72, 444 A.2d 234 (1982); and the resulting financial orders are ‘‘entirely interwoven.''[16](Internal quotation marks omitted.) Greco v. Greco, supra, 354; see, e.g., Blake v. Blake, 207 Conn. 217, 232, 541 A.2d 1201 (1988) (‘‘[i]n determining the assignment of marital property under § 46b-81 or alimony under § 46b-82, a trial court must weigh . . . the opportunity of each for future acquisition of capital assets and income'' [emphasis added]); Koizim v. Koizim, 181 Conn. 492, 493, 498, 435 A.2d 1030 (1980) (alimony award not abuse of discretion in part because of wife's ‘‘very significant'' contributions, ‘‘both financial and otherwise, '' to marriage; ‘‘even if we . . . look solely at the other statutory criteria, especially . . . the contributions that each spouse made to the marriage . . . the court's [alimony] orders are neither mind boggling, outrageously excessive nor unreasonable'' [emphasis added]); Weinstein v. Weinstein, 18 Conn.App. 622, 634, 638, 561 A.2d 443 (1989) (after ‘‘properly assessing the parties' relative earning capacities, asset holdings, and ability to acquire assets, in accordance with . . . § 46b-82, '' trial court did not abuse discretion in not awarding alimony to wife because of her ‘‘capacity to acquire assets in the future'' [emphasis added; internal quotation marks omitted]). In any event, the trial court had discretion to consider these equitable factors when awarding alimony, and their inclusion in the property distribution statute did not render them off-limits to the trial court's analysis.[17] See Borkowski v. Borkowski, supra, 228 Conn. 743-44 (courts may consider ‘‘any other factors which may be appropriate for a just and equitable resolution of the marital dispute'' when awarding alimony [internal quotation marks omitted]); Demartino v. Demartino, 79 Conn.App. 488, 500, 830 A.2d 394 (2003) (‘‘[b]ecause § 46b-82 does not contain an exhaustive list of factors, the court properly may consider other equitable factors when determining an alimony award'' [internal quotation marks omitted]); accord Smith v. Smith, 249 Conn. 265, 283-84, 752 A.2d 1023 (1999) (court could equitably consider husband's travel expenses in seeing children as factor when awarding alimony even though factor is ‘‘listed explicitly'' in child support regulations).[18]

         Although the defendant points to the fact that the trial court considered two factors that appear in the property distribution statute but not the alimony statute, he does not mention that the trial court also considered one factor that appears in the alimony statute, but not the property distribution statute. In awarding lump sum alimony, the trial court emphasized the plaintiff's ‘‘primary child care responsibilities for four children, which limits her ability to enter the workforce on a fulltime basis . . . .'' The alimony statute lists as a factor, ‘‘the desirability and feasibility of [the] parent's securing employment'' in the case of parents to whom the custody of minor children is awarded. General Statutes § 46b-82 (a). The property distribution statute contains no such factor.[19] See General Statutes § 46b-81 (c).

         The trial court's articulation also supports the characterization of the award as alimony and not a property distribution. The plaintiff sought an articulation as to whether the trial court ‘‘considered, applied, or intended to apply'' a factor in § 46b-81 when it awarded lump sum alimony. The trial court responded: ‘‘In making an equitable division of marital property or an award of alimony, whether periodic or lump sum, the court must, as it did, consider the statutory criteria set forth in . . . §§ 46b-81 and 46b-82 respectively.'' (Emphasis altered.) The word ‘‘respectively'' indicates the court's understanding that each statute applies to each type of financial order. This language therefore confirms the trial court's application of § 46b-82, not § 46b-81, when awarding lump sum alimony. The trial court also acknowledged its equitable power to consider ‘‘any appropriate additional factors, statutory or otherwise'' in its articulation, noting that those powers gave ‘‘the court the authority to consider all the circumstances that may be appropriate for a just and equitable resolution of the marital dispute.'' (Emphasis omitted; internal quotation marks omitted.)

         The trial court further differentiated between the lump sum alimony award and its property distribution orders at a hearing on the plaintiff's motion to terminate an appellate stay on several of its orders. The court stated, ‘‘I crafted this order . . . [a]nd I specifically separated what I consider property settlement from . . . lump sum alimony.'' (Emphasis added.) The court explained that it awarded both periodic and lump sum alimony in consideration of how the defendant's income ‘‘comes in'' and ‘‘flow[s]'' from his various income streams. The court noted that ‘‘there's a method to the . . . madness in terms of how the decree is crafted.'' Thus, the court evidently did not intend to effectuate a functional property distribution by awarding lump sum alimony, but intended to account for the fact that the defendant received some components of his income only a few times per year.

         B

         Second, we disagree with the defendant's contention that, because the combined alimony and child support payments exceed the plaintiff's claimed expenses, the lump sum alimony award is a functional property distribution, in light of the standard of living of the marriage and the equitable factors considered by the trial court.[20]See footnote 10 of this opinion. The plaintiff attested to having $65, 444 per month in expenses at the time of trial.[21] The $40, 000 per month periodic alimony and child support payments would not cover this amount. The lump sum alimony payments, however, when combined with these payments, equate to $102, 500 per month in total alimony and child support. Although this figure exceeds the plaintiff's claimed expenses, we cannot conclude that this fact alone means that the lump sum award constitutes a functional property distribution. See Koizim v. Koizim, supra, 181 Conn. 493-94 (upholding total alimony award of $9000 per month, when wife claimed approximately $7083 per month in expenses and marital expenses were $7500 per month).

         First, it is not clear from the record to what extent the trial court considered the plaintiff's expenses, as stated in her financial affidavit, to represent the standard of living of the marriage.[22] See, e.g., Mavilla v. Mavilla, Docket No. 2011-095, 2011 WL 4975100, *5 (Vt. August 31, 2011) (wife's financial affidavit showed that her ‘‘standard of living was far below that established during the marriage and that which husband currently enjoyed''); see also Stamper v. Stamper, Docket No. A10-109, 2010 WL 3119503, *4 (Minn.App. August 10, 2010) (wife's claimed expenses ‘‘reflect[ed] a significantly reduced standard of living compared to the standard enjoyed during the marriage''); cf. Thomas v. Thomas, Docket No. A13-0905, 2014 WL 802035, *3 (Minn.App. March 3, 2014) (wife's claimed expenses ‘‘accurately reflect[ed] the parties' standard of living during the marriage''). Although the primary purpose of alimony is to provide for continuing support of a disadvantaged spouse, the spouse is entitled to maintain the standard of living of the marriage after the dissolution, as closely as possible. See, e.g., Brody v. Brody, 315 Conn. 300, 313, 105 A.3d 887 (2015) (‘‘[t]he generally accepted purpose of . . . alimony is to enable a spouse who is disadvantaged through divorce to enjoy a standard of living commensurate with the standard of living during marriage'' [internal quotation marks omitted]). When the disadvantaged spouse's efforts ‘‘increased the other's earning capacity at the expense of [his or] her own, '' he or she is entitled to ‘‘sufficient alimony to ensure the continued enjoyment of [that] standard of living . . . .'' (Internal quotation marks omitted.) Dan v. Dan, 315 Conn. 1, 11, 105 A.3d 118 (2014). Moreover, the parties' children are entitled to continue ‘‘the lifestyle to which [they were] accustomed and the standard of living [they] enjoyed before the divorce . . . .'' (Internal quotation marks omitted.) Maturo v. Maturo, 296 Conn. 80, 108, 995 A.2d 1 (2010).

         The parties apparently maintained a high standard of living during the marriage. The defendant valued the marital home at $6.75 million[23] and the parties' vacation home at $1.2 million. Although the defendant's income fluctuated during the marriage, he earned more than $1 million per year in several years of the marriage.[24]The trial court acknowledged that his employment has ‘‘proven to be very lucrative.'' In 2006, for example, he earned $1, 687, 677, which equates to approximately $140, 640 per month. The following year, he earned $1, 253, 766, or approximately $104, 480 per month. He also received an additional $37 million from the sale of a software program three years into the marriage. At the time of trial, the defendant's bank account contained $84, 238. Because the plaintiff's efforts as a homemaker and the primary caretaker of the children increased the defendant's earning capacity at the expense of her own, she is entitled to maintain this standard of living after the divorce, to the extent possible. See, e.g., Dan v. Dan, supra, 315 Conn. 11; Brody v. Brody, 136 Conn.App. 773, 790, 51 A.3d 1121 (2012) (‘‘the parties had enjoyed a comfortable lifestyle during their marriage . . . for the benefit of the [wife] and the parties' children, any award of alimony should reflect this quality of life''), rev'd in part on other grounds, 315 Conn. 300, 105 A.3d 887 (2015).

         In addition to the marital standard of living, the trial court must also consider the factors in § 46b-82 when awarding alimony. See Golden v. Mandel, 110 Conn.App. 376, 385, 955 A.2d 115 (2008) (‘‘[t]he standard of living . . . was only one factor that the court considered in making its financial award''). Such factors include: ‘‘the length of the marriage, the causes for the . . . dissolution of the marriage . . . [and] the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate and needs of each of the parties . . . .'' General Statutes § 46b-82 (a). The trial court must also consider any property distributions made pursuant to § 46b-81 and, ‘‘in the case of a parent to whom the custody of minor children has been awarded, the desirability and feasibility of such parent's securing employment.'' General Statutes § 46b-82 (a).

         Accordingly, the plaintiff's expenses do not represent the only factor that the trial court must consider when awarding alimony. On the contrary, § 46b-82 lists thirteen other factors that the court must consider when awarding alimony, in addition to the ‘‘needs'' of the recipient spouse. The court must not only examine the spouse's financial situation at the time of trial, but look ahead to his or her ability to generate income in the future. See General Statutes § 46b-82 (instructing court to consider spouse's ‘‘age, health, station, occupation . . . earning capacity, vocational skills, education, [and] employability''). Several of the factors relate in no way to the spouse's expenses, such as the length of the marriage and the cause of the breakdown of the marriage. The trial court must also look to the payor spouse's financial situation, in addition to that of the recipient spouse. Specifically, the trial court must consider the payor's age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, and employability. These factors have nothing to do with the recipient spouse's claimed expenses. Thus, it cannot be said that the trial court was constrained by the plaintiff's claimed expenses in awarding alimony. The trial court instead had ‘‘wide discretion'' to ensure that the plaintiff and the parties' children continued to enjoy the standard of living of the marriage for years to come. (Internal quotation marks omitted.) Brody v. Brody, supra, 315 Conn. 313.

         The trial court's resolution of these factors in the present case further militates against characterizing the lump sum alimony award as a property distribution.[25]The parties were married for seventeen years and have four minor children. The children, now ages eleven, fourteen, fifteen, and seventeen, three of whom have learning issues, primarily reside with the plaintiff. The defendant was fifty years old at the time of trial and in ‘‘general good health.'' Although he described a ‘‘painful bout of neuropathy'' at one point during the marriage, the trial court found that he ‘‘is not prevented from working full-time.'' The defendant has a business degree from Syracuse University, and his primary employment is with his family's window company and its subsidiaries. At the time of trial, the defendant earned nearly $1 million per year from his employment and investments. By contrast, the plaintiff was forty-five years old at the time of trial, suffers from a thyroid condition, and is borderline diabetic. She has a college degree from Emerson College, but did not work for the ‘‘greater portion'' of the parties' seventeen year marriage. When she did work, she earned approximately $30, 000 per year, with a maximum of $65, 000 to $70, 000 per year. She earned no income at the time of trial and claimed $65, 444 per month in expenses. Significantly, the trial court also found that the defendant caused the breakdown of the marriage, [26] characterizing him as a ‘‘controlling, emotional bully'' and describing his ‘‘bizarre'' and ‘‘demeaning'' behavior.[27]

         Moreover, the agreement left the defendant with significant assets as compared to the plaintiff. See General Statutes § 46b-82 (trial court ‘‘shall consider the . . . estate . . . of each of the parties''); Golden v. Mandel, supra, 110 Conn.App. 386 (‘‘[i]t is well established that the parties' estate is defined as the aggregate of the property and liabilities of each'' [emphasis added]); see also Schmidt v. Schmidt, 180 Conn. 184, 192, 429 A.2d 470 (1980) (‘‘the ‘estate' of the parties . . . comprehends the aggregate of the property and liabilities of each''). The trial court ordered the defendant to pay to the plaintiff: $2, 082, 000, the amount owed her under the prenuptial agreement; $40, 000 per month in periodic unallocated alimony and child support for fifteen years; and $7.5 million in lump sum alimony, payable in biannual installments of $375, 000. The defendant, however, kept the marital home and the parties' vacation home, in addition to all of his commercial real estate, business ownerships, securities, bonds, bank accounts, and retirement accounts. He received, in total, more than $25 million in assets.[28] By comparison, the plaintiff kept the home she purchased during this dissolution litigation, as well as her bank accounts, retirement accounts, and personal property, which totaled approximately $4.5 million.[29]

         The trial court also did not specify how much of the periodic alimony and child support award should go toward the children's maintenance, as opposed to the plaintiff's support. The trial court, at least, found it appropriate to deviate from the presumptive minimum child support amount under the guidelines based on the defendant's income. Moreover, the parties' four minor children are entitled to maintain the standard of living of the marriage, to the extent possible. See Maturo v. Maturo, supra, 296 Conn. 108; see also id., 168-69 (Vertefeuille, J., dissenting in part) (noting ‘‘new wave'' of cases recognizing ‘‘the significance of the standard of living of children of affluent parents'' [internal quotation marks omitted]). The $40, 000 per month award, which would not cover the plaintiff's $65, 444 in expenses, was also limited to fifteen years.

         In light of these principles, we disagree with the defendant's contention that, because the combined alimony and child support payments exceed the plaintiff's claimed expenses, the lump sum alimony award is functionally a property distribution. The agreement's waiver of equitable distribution of property does not change this result. Although the agreement limited the court's discretion to distribute property, it did not limit the trial court's discretion to award alimony in any way. The agreement simply stated that ‘‘a court of competent jurisdiction shall address the issues of alimony and/or child support . . . in the event [of] . . . divorce . . . .'' Indeed, the Appellate Court recently rejected a nearly identical argument in Brody v. Brody, supra, 136 Conn.App. 790, in which the trial court properly awarded lump sum alimony despite the existence of a prenuptial agreement in which the parties waived equitable distribution. The husband argued, as here, that ‘‘the [trial] court improperly used the award of alimony to effectuate an improper distribution of property in violation of the parties' prenuptial agreement.'' Id., 788. The Appellate Court disagreed, noting that the trial court had ‘‘broad discretion'' to award alimony because the prenuptial agreement ‘‘by its clear terms, [was] concerned with equitable distributions of property . . . not alimony awards.'' Id., 791. Accordingly, we conclude that the lump sum alimony award does not constitute a functional property distribution in contravention of the parties' agreement.[30]

         II

         We now turn to the defendant's claim that the trial court abused its discretion in ordering him to pay $100, 000 of the plaintiff's trial attorney's fees and $40, 000 of her appellate attorney's fees, in light of its other awards to her.[31] Specifically, the defendant claims that the plaintiff received ample liquid funds from the trial court's judgment with which to pay her attorney's fees, and that the trial court's conclusion that not awarding her attorney's fees would undermine its other awards to her was unreasonable. In response, the plain- tiff contends that the trial court properly exercised its discretion in awarding her attorney's fees, and reasonably concluded that not doing so would have undermined its other awards. Additionally, with respect to the appellate attorney's fees award, the plaintiff asserts that she did not have sufficient liquid assets to defend the appeal because several of the trial court's financial orders were stayed pending appeal. We agree with the defendant, and conclude that the trial court abused its discretion in awarding the plaintiff attorney's fees.

         Section 46b-62 (a) authorizes the trial court to award attorney's fees in a dissolution action when appropriate in light of the ‘‘respective financial abilities'' of the parties and the equitable factors listed in § 46b-82. Turgeon v. Turgeon, 190 Conn. 269');">190 Conn. 269, 280, 460 A.2d 1260 (1983); see also footnotes 7 and 8 of this opinion. ‘‘[W]e [have] stated three broad principles by which these statutory criteria are to be applied. First, such awards should not be made merely because the obligor has demonstrated an ability to pay. Second, where both parties are financially able to pay their own fees and expenses, they should be permitted to do so. Third, where, because of other orders, the potential obligee has ample liquid funds, an allowance of [attorney's] fees is not justified.'' Turgeon v. Turgeon, supra, 280.

         ‘‘A determination of what constitutes ample liquid funds . . . requires . . . an examination of the total assets of the parties at the time the award is made.'' (Citation omitted; internal quotation marks omitted.) Anderson v. Anderson, 191 Conn. 46, 59, 463 A.2d 578 (1983). We have recognized, however, that ‘‘[t]he availability of sufficient cash to pay one's attorney's fees is not an absolute litmus test . . . . [A] trial court's discretion should be guided so that its decision regarding attorney's fees does not undermine its purpose in making any other financial award.'' Devino v. Devino, 190 Conn. 36, 38-39, 458 A.2d 692 (1983); see also, e.g., Grimm v. Grimm, 276 Conn. 377, 398, 886 A.2d 391 (2005) (not awarding $100, 000 in attorney's fees to wife would have ‘‘necessarily eviscerate[d]'' any benefit she would have received from $100, 000 lump sum alimony award), cert. denied, 547 U.S. 1148, 126 S.Ct. 2296, 164 L.Ed.2d 815 (2006).

         ‘‘Whether to allow [attorney's] fees, and if so in what amount, calls for the exercise of judicial discretion'' by the trial court. (Internal quotation marks omitted.) Anderson v. Anderson, supra, 191 Conn. 58. ‘‘An abuse of discretion in granting [attorney's] fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did.'' (Internal quotation marks omitted.) Misthopoulos v. Misthopoulos, 297 Conn. 358, 386, 999 A.2d 721 (2010).

         In the present case, the trial court ordered the defendant to pay $100, 000 of the plaintiff's trial attorney's fees and $40, 000 of her appellate attorney's fees. The trial court reasoned, with respect to the trial attorney's fees award, that ‘‘to require the [plaintiff], who has minimal earning capacity and the responsibility for the primary care of four minor children age nine through fifteen, three of whom have learning issues, to pay these fees from her portion of the financial award . . . would undermine the purposes of [the] same'' and that ‘‘it would be fair and equitable for the [defendant] to pay [those fees].'' After the defendant filed an appeal, the trial court awarded the plaintiff an additional $40, 000 in appellate attorney's fees, stating that the plaintiff needed ‘‘reasonable access to the court system [to] defend an appeal that [the defendant] made.'' The trial court noted that several of its financial awards to the plaintiff, including the $2, 082, 000 payment under the agreement, the $375, 000 biannual lump sum alimony payments, and the $100, 000 trial attorney's fees award, were automatically stayed pending the defendant's appeal. See Practice Book § 61-11 (a). The $40, 000 per month periodic alimony and child support payments were not stayed, however, and the plaintiff continued to receive those payments. See Practice Book § 61-11 (c) (‘‘no automatic stay shall apply . . . to orders of periodic alimony, [or child] support''). The trial court also noted that the plaintiff had only $3700 in her bank accounts at that time and, thus, she was ‘‘land rich but cash poor.''[32] The trial court therefore concluded that the plaintiff did ‘‘not have ample liquid assets'' or ‘‘resources that are readily available'' to pay the fees. Four months later, the plaintiff successfully moved to terminate the stay on the $2, 082, 000 payment and the lump sum alimony award. Specifically, the plaintiff was scheduled to receive the $2, 082, 000 payment and the first $375, 000 installment of the lump sum alimony award by December 19, 2014.

         We conclude that the trial court abused its discretion in making the attorney's fees awards because the plaintiff received ample liquid funds as a result of the trial court's judgment, and the trial court's determination that not awarding attorney's fees to the plaintiff would undermine its other awards was unreasonable. See, e.g., Koizim v. Koizim, supra, 181 Conn. 501. We further disagree with the plaintiff's contention that the appellate stay on the trial court's financial orders justifies the appellate attorney's fees award because the trial court could have terminated the stay sua sponte, and because the plaintiff did, in fact, successfully move to terminate the stay on several of those orders.

         First, the trial attorney's fees award represents a very small portion of the liquid assets awarded to the plaintiff in the trial court's judgment. Pursuant to the judgment, the plaintiff would receive: $2, 082, 000, the amount owed to her under the agreement, within sixty days of the judgment; $40, 000 per month in periodic alimony and child support, starting twelve days from the judgment; and $7.5 million in lump sum alimony, payable in bian- nual installments of $375, 000, starting two and one-half months from the judgment. Thus, the plaintiff would receive liquid assets totaling $2, 577, 000 within three months of the judgment.[33] The trial attorney's fees award represents only 4 percent of this amount.[34] We have previously held attorney's fees awards amounting to a low portion of the payee's liquid assets to constitute an abuse of discretion, since the payee could easily have paid the fees out of those assets, despite the existence of equitable factors supporting the award. See, e.g., Maguire v. Maguire, supra, 222 Conn. 34-35, 44 ($50, 000 attorney's fees award, which amounted to 10 percent of wife's $500, 000 in liquid assets, was abuse of discretion, even though parties were married for forty years and had children, husband caused breakdown of marriage, and wife had limited earning capacity);[35]Blake v. Blake, supra, 211 Conn. 488-89 (concluding that wife could not ‘‘reasonably'' claim that failure to award $14, 948 in attorney's fees and expenses, which amounted to 2 percent of wife's $630, 000in liquid assets, ‘‘would undermine or skew the substantial financial awards granted to her'' and noting that awarding attorney's fees would be ‘‘gilding the lily'' where husband had $5, 503, 000 in total assets and wife had $1, 535, 000 in total assets); see also Blake v. Blake, supra, 207 Conn. 218-19 (parties were married for twelve years and had three children).[36] By contrast, this court and our Appellate Court have deemed attorney's fees awards that represent a more substantial part of the payee's liquid assets proper, because not doing so could result in the immediate depletion of those assets, especially when equitable factors support the award. See, e.g., Unkelbach v. McNary, 244 Conn. 350, 375-77, 710 A.2d 717 (1998) (wife amassed $3250 in attorney's fees and had liquid assets of only $1686); Eslami v. Eslami, 218 Conn. 801, 818-21, 591 A.2d 411 (1991) (trial court did not abuse its discretion in awarding wife total of $48, 230 in attorney's fees and expert witness fees, amounting to 15 percent of wife's total assets, which were comprised of $95, 000 in deposits and securities and $300, 000 lump sum alimony award, less $70, 650 in claimed liabilities, in case where parties were married for thirty years, husband caused breakdown of marriage, there was ‘‘great disparity'' in parties' income and assets, and wife was in ‘‘poor health'' and had ‘‘substantial continuing medical expenses''); Ehrenkranz v. Ehrenkranz, 2 Conn.App. 416, 417, 424, 479 A.2d 826 (1984) ($7500 attorney's fees award, which amounted to 50 percent of wife's $15, 000 in liquid assets, was not abuse of discretion; parties were married for thirty years and husband caused breakdown of marriage).[37]

         Viewed another way, the trial attorney's fees award in the present case represents less than 2 percent of the lump sum alimony award alone, not including the $2, 082, 000 payment under the agreement or the $40, 000 per month periodic alimony and child support payments. Similar to the comparison with the payee's liquid assets, attorney's fees awards that represent a small portion of the payee's lump sum alimony award have been held improper, because the payee could easily pay his or her own attorney's fees out of that award, even in the wake of strong equitable factors. See, e.g., Turgeon v. Turgeon, supra, 190 Conn. 270, 279-81 ($10, 000 in attorney's fees and $1500 in expert witness fees awards, amounting to 8 percent of $140, 000 in total lump sum alimony awards to wife, was abuse of discretion, though parties were married for twenty-three years and husband received $309, 000 in assets, compared to wife's $100, 000; property and alimony awards to wife were ‘‘generous'' and ‘‘liquid assets being made available [to her were] ample''); Koizim v. Koizim, supra, 181 Conn. 493-501 ($55, 000 in attorney's fees award, amounting to 9 percent of $600, 000 lump sum alimony award and 4 percent of $1, 410, 000 in total assets, not including periodic alimony award, was abuse of discretion where parties were married for twenty-seven years, husband earned $208, 000 per year, wife earned $1000 per year, husband was unfaithful, and wife made ‘‘significant'' contributions to marriage, ‘‘both financial and other-wise'').[38] Conversely, attorney's fees awards reflecting a more significant portion of the payee's lump sum alimony award, thereby potentially undermining that award, have been held proper, especially when equitable factors support the award. See, e.g., Holley v. Holley, 194 Conn. 25, 26-27 and n.1, 478 A.2d 1000 (1984) (attorney's fees award of $7500, amounting to 50 percent of $15, 000 lump sum alimony award, not including periodic alimony and child support award, not abuse of discretion where parties were married for approximately fifteen years, had one minor child, husband earned $100, 000 per year, wife earned $23, 000 per year, and husband had $280, 000 in separate assets); Costa v. Costa, 11 Conn.App. 74, 75-77, 526 A.2d 4 (1987) (attorney's fees award of $6000, amounting to 30 percent of $20, 000 lump sum alimony award, not including periodic alimony award, not abuse of discretion where husband had $280, 000 in assets, wife had $170, 000 in assets, husband earned $58, 400 per year, and wife ‘‘needed treatment for deep depression and had no immediate prospect of being able to work''); see also Weiman v. Weiman, 188 Conn. 232, 235-37, 449 A.2d 151 (1982) ($10, 000 attorney's fees award to wife proper when trial court ‘‘could reasonably have concluded that [her] financial resources . . . were necessary to meet her future needs'' and alimony awarded to her ‘‘was not substantial in amount nor was it for a long period of time'').[39]

         In the present case, given the vast liquid assets awarded to the plaintiff, and the modest nature of the attorney's fees when compared with those assets, the equitable factors in § 46b-82, as incorporated into § 46b-62, do not justify the award. See Koizim v. Koizim, supra, 181 Conn. 500-501 (equitable factors justified lump sum and periodic alimony awards, but not attorney's fees award). As grounds for the trial attorney's fees award, the trial court cited the plaintiff's ‘‘minimal earning capacity'' and responsibility for caring for the parties' four minor children. The trial court further stated that it would be ‘‘fair and equitable'' for the defendant to pay the fees. The trial court cited similar concerns with regard to the appellate attorney's fees award. We have stated, however, that attorney's fees ‘‘are not to be awarded merely because the obligor has demonstrated an ability to pay'' and that ‘‘[w]here, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so.'' Koizim v. Koizim, supra, 500-501. Although these factors strongly support the validity of the lump sum alimony award, they are outweighed in the attorney's fees context by the fact that the fees represent but a small fraction of the substantial liquid assets awarded to the plaintiff.[40] Cf. Misthopoulos v. Misthopoulos, supra, 297 Conn. 383-87 ($64, 000 attorney's fees award was proper when ‘‘the overwhelming majority of the assets awarded to the [wife] were not liquid assets, '' given that ‘‘[$2.6 million] of the approximately [$3.2 million] in assets awarded to the [wife] consisted of the family home in which the [wife] and the parties' three minor children resided'' and ‘‘also included her interest in a trust . . . certain retirement accounts, vested stock and vested stock options'').[41]

         Lastly, the plaintiff argues that the $40, 000 appellate attorney's fees award was, at least, proper, because the $2, 082, 000 payment under the agreement and the lump sum alimony payments were stayed pending the defendant's appeal. Thus, she claims that she did not have ample liquid funds with which to defend the appeal. We are unpersuaded that the stay on these orders justifies the appellate attorney's fees award. The plaintiff always had the option of seeking to terminate the stay. See Practice Book § 61-11 (c). As stated previously, the plaintiff did, in fact, successfully move to terminate the stay several months after the trial court's award of appellate attorney's fees. Furthermore, the trial court had the discretion to terminate the stay sua sponte at any time. See Practice Book § 61-11 (d). Additionally, although the plaintiff's amended financial affidavit showed only $3700 in her bank accounts, she was still receiving $40, 000 per month in periodic alimony and child support, and attested to having personal property worth $305, 810, a home worth $2.1 million, and other assets worth $79, 794.[42] See Anderson v. Anderson, supra, 191 Conn. 60 (attorney's fees award was abuse of discretion when home would be sold at later date, because sale of home would ‘‘yield liquid assets for both parties''). These factors, when considered in light of the substantial liquid assets awarded to the plaintiff, offset the significance of the temporary stay on the orders.[43]

         We, therefore, conclude that the trial court abused its discretion in awarding the plaintiff attorney's fees under these circumstances, thus requiring reversal of the trial court's judgment with respect to those awards.[44] Furthermore, because we conclude that the attorney's fees awards are severable from the trial court's other financial orders, it is not necessary to remand the case for reconsideration of all financial matters. See Smith v. Smith, supra, 249 Conn. 277. ‘‘This court and the Appellate Court have often described financial orders appurtenant to dissolution proceedings as entirely interwoven and as a carefully crafted mosaic, each element of which may be dependent on the other. . . . Every improper order, however, does not necessarily merit a reconsideration of all of the trial court's financial orders. A financial order is severable when it is not in any way interdependent with other orders and is not improperly based on a factor that is linked to other factors.'' (Citations omitted; internal quotation marks omitted.) Id. Here, the attorney's fees awards are severable from the trial court's other financial orders and a new hearing on all financial matters is not required.

         The judgment is reversed only with respect to the attorney's fees awards to the plaintiff, and the case is remanded with direction to deny the plaintiff's motions for trial and appellate attorney's fees; the judgment is affirmed in all other respects.

         In this opinion

          ROGERS, C.J., and PALMER and VERTEFEUILLE, Js., concurred.

          ZARELLA, J., dissenting.

         I fear that the majority's opinion in the present case is the beginning of a grave and perilous road for matrimonial law in Connecticut, and, therefore, I respectfully dissent. By upholding the trial court's $7.5 million lump sum alimony award, the majority eviscerates the parties' enforceable[1] premarital agreement, defeats the purpose behind the Connecticut Premarital Agreement Act (act), General Statutes § 46b-36a et seq., and fails to keep pace with the development of matrimonial law in our sister states. In light of the majority's opinion, an enterprising trial court struck by sympathy for a recent divorcee who entered into a less than favorable-but not unconscionable-premarital agreement may now end-run the agreement, consciously or subconsciously, by awarding greater ‘‘alimony, '' unless the agreement expressly provides for the level of alimony. Today's result defeats Connecticut's public policy of encouraging the private settlement of family matters and removes the predictability the act was intended to create. See, e.g., Conn. Joint Standing Committee Hearings, Judiciary, Pt. 7, 1995 Sess., p. 2492 (‘‘[one] purpose of the [proposed] [a]ct is to provide certainty as to the enforceability of the provisions in premarital agreements''). Prospective spouses who enter into premarital agreements that settle issues of property division in the unfortunate event of a future divorce but leave for the courts the award of alimony- a seemingly prudent decision[2]-do so at their own risk. No longer can such prospective spouses be sure that the Connecticut courts will honor their intentions as expressed in the agreement. Until the legislature addresses the majority's conclusions, attorneys are well advised to include alimony waivers or provisions setting alimony amounts and terms in premarital agreements.

         I

         LUMP SUM ALIMONY AWARD

         In the present case, the majority upholds the trial court's financial order awarding the plaintiff, Marjorie Hornung, lump sum alimony of $7.5 million. The defendant, Robert Hornung, claims that, in light of the periodic alimony award, the property settlement resulting from the premarital agreement, and the trial court's express reliance on statutory criteria pertaining to property division, the lump sum alimony award was an improper property distribution in contravention of the parties' premarital agreement. More specifically, the defendant claims that the parties intended that all property matters be settled by the premarital agreement. He argues that the lump sum alimony award subverted such intention because it was, either in fact or function, a disguised property distribution. To support his contention that the alimony award is a property distribution, the defendant argues, among other things, that the support award far exceeds what the plaintiff requires for her support and maintenance.[3] I agree with the defendant that the lump sum alimony award is a functional property distribution. I reach this conclusion in light of the fact that the support award in the present case far exceeds the plaintiff's need for support and maintenance, and requires the defendant to invade his assets to satisfy the obligation. I additionally conclude that the lump sum alimony award undermines the premarital agreement because the agreement contemplated alimony, which is an award sufficient to allow the recipient to continue in his or her current lifestyle. In the present case, however, the trial court's alimony award exceeds an amount sufficient for such purpose and the reasonable bounds of discretion. For these reasons, I would reverse the judgment of the trial court and remand the case for the entry of new financial orders.[4]

         An understanding of the premarital agreement is essential to the resolution of the defendant's claim. On July 14, 1997, the plaintiff and the defendant executed a premarital agreement. The agreement defines and identifies each party's separate property. It also defines marital property as ‘‘all property that is acquired by either or both parties subsequent to the marriage . . . .'' In the event of dissolution of the marriage, the agreement provides that each party shall retain his or her separate property, the defendant will retain the marital property, except for certain personal property, and the plaintiff will receive from the defendant a property settlement payment. A formula for determining the amount of the property settlement payment is provided in the agreement. The payment amount increases with the length of the marriage and the number of children of the marriage. It was the express intention of the parties that the property distribution effectuated by the agreement fully satisfy both party's claims to property under Connecticut's equitable property distribution statute, General Statutes § 46b-81. The agreement also provides that ‘‘a court of competent jurisdiction shall address the issues of alimony and/or child support, both temporary and permanent . . . .''[5] In July, 2008, the parties amended the agreement. At the time of the dissolution, the trial court found that, under the terms of the amended agreement, the plaintiff was to receive a property settlement payment of $4.75 million, $1.25 million under the terms of the original agreement and an additional $3.5 million pursuant to the July, 2008 amendment for her separate interest in the marital home.

         In addressing alimony and child support, the trial court ordered the defendant to pay the plaintiff periodic unallocated alimony and child support, as well as lump sum alimony. The court awarded $40, 000 per month in periodic unallocated alimony and child support, which the parties do not challenge on appeal. That award is time limited, ending upon the death of either party, the plaintiff's remarriage, or in March, 2029, at which time the plaintiff will be sixty years old. In addition, the periodic award provides the plaintiff with an income safe harbor of $50, 000.[6] The court also awarded the plaintiff $7.5 million in lump sum alimony, payable in twenty semiannual installments of $375, 000. The lump sum award is nonmodifiable, survives the death of either party, and does not terminate upon the remarriage of the plaintiff. During the ten years that the plaintiff will receive both periodic and lump sum alimony payments, she will collect monthly support of $102, 500. The lump sum alimony payments will end in 2024, at which time all four of the parties' children will be well past the age of majority.[7] Thereafter, the plaintiff will continue to receive the monthly periodic unallocated alimony and child support until March, 2029, unless she has remarried or she or the defendant has died.

         The trial court's $7.5 million award, despite being characterized by the court as lump sum alimony, operates as a property distribution and subverts the premarital agreement. The award functions as a property distribution because it (1) exceeds the plaintiff's support and maintenance needs, and (2) requires the defendant to invade the assets he retained pursuant to the premarital agreement in order to meet the claimed alimony obligation.[8]

         I will first address the excessiveness of the alimony, beginning by setting forth the legal principles that govern this determination. Generally, trial courts enjoy broad discretion when equitably distributing property and entering alimony orders in a marital dissolution case. E.g., Greco v. Greco, 275 Conn. 348, 354, 880 A.2d 872 (2005). Such broad discretion is necessary due to the myriad circumstances surrounding marriage dissolution actions and the court's objective to place each spouse in an equitable post dissolution position. See, e.g., Kiniry v. Kiniry, 299 Conn. 308, 316, 9 A.3d 708 (2010); Mickey v. Mickey, 292 Conn. 597, 615, 974 A.2d 641 (2009). It has often been said that the court's equitable power is ‘‘the keystone [of] the court's ability to fashion relief'' when dissolving a marriage and that, without it, and the court's broad discretion, it might be impossible to fairly resolve some dissolution disputes. Sunbury v. Sunbury, 210 Conn. 170, 174, 553 A.2d 612 (1989). Nevertheless, divorce is a creature of statute, and the court's authority to provide relief in such cases is derived therefrom. Id.; Rubin v. Rubin, 204 Conn. 224, 229, 527 A.2d 1184 (1987). General Statutes §§ 46b-81 and 46b-82 provide the court with its primary tools for rendering an equitable dissolution of marriage. Mickey v. Mickey, supra, 615.

         With respect to § 46b-81, the Superior Court is empowered to ‘‘assign to either spouse all or any part of the estate of the other spouse.'' General Statutes § 46b-81 (a). The purpose of such property distribution ‘‘is to unscramble existing marital property in order to give each spouse his or her equitable share at the time of dissolution.'' Smith v. Smith, 249 Conn. 265, 275, 752 A.2d 1023 (1999). In applying § 46b-82, the court is permitted to order either spouse or both spouses to pay alimony to the other spouse; see General Statutes § 46b-82 (a); see also Smith v. Smith, supra, 280 (concluding that § 46b-82 permits trial courts to order both spouses to pay alimony); and the purpose of such award is to provide for the continuing support and maintenance of the recipient spouse.[9] See, e.g., Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 132, 869 A.2d 164 (2005). Although each of these statutory provisions serves a divergent purpose, they are nonetheless interrelated and complementary. See Mickey v. Mickey, supra, 292 Conn. 615. Indeed, § 46b-82 (a) provides that alimony may be awarded ‘‘in addition to or in lieu of'' a property division, and it directs the court, in determining whether alimony should be awarded, to consider any distribution it made under § 46b-81. (Emphasis added.) Moreover, the factors to be considered under each statute largely overlap. In assigning property under § 46b-81 and determining whether alimony should be awarded under § 46b-82, the court must consider, inter alia, ‘‘the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate . . . and needs of each of the parties . . . .'' General Statutes § 46b-81 (c); accord General Statutes § 46b-82 (a). Under the property division statute, the court must also consider each party's liabilities, contributions to the ‘‘acquisition, preservation or appreciation in value of their respective estates, '' and future opportunities to acquire capital assets and income; General Statutes § 46b-81 (c); and, in rendering alimony orders, the court must consider whether the alimony recipient is the custodial parent of any minor children and the desirability and feasibility of such parent securing employment. General Statutes § 46b-82 (a).

         Pursuant to §§ 46b-81 and 46b-82, trial courts may balance property distributions and alimony awards to achieve a fair and equitable result in dissolving a marriage. See Sunbury v. Sunbury, supra, 210 Conn. 174-75 (concluding that reversing one element of financial order and limiting remand to reconsideration of that element ‘‘would impede the trial court's ability to weigh the statutory criteria for financial orders to achieve an equitable result'' because ‘‘issues involving financial orders are entirely interwoven'' and ‘‘rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other'' [internal quotation marks omitted]). Nevertheless, these statutes are distinct and serve separate purposes, namely, property division and spousal support. See Mickey v. Mickey, supra, 292 Conn. 615-16 (‘‘Despite their close relationship . . . the purposes and operation of §§ 46b-81 and 46b-82 are distinct . . . . [T]he purpose of § 46b-81 is to unscramble the spouses' current property interests . . . [whereas] the purpose of § 46b-82 is to recognize the obligation of support that spouses assume toward each other by virtue of the marriage.'' [Citation omitted; internal quotation marks omitted.]). The dividing line between the two statutes becomes particularly important when the divorcing parties have entered into a premarital agreement that completely resolves the property distribution, such as in the present case.

         The existence of a premarital agreement in a dissolution action implicates additional statutory provisions, namely, the Connecticut Premarital Agreement Act (act), General Statutes § 46b-36a et seq. The act authorizes premarital agreements and provides for the form and permissible content of such agreements. See General Statutes §§ 46b-36c and 46b-36d. It also sets forth the factors that courts are to consider in determining whether premarital agreements are enforceable. See General Statutes § 46b-36g. When divorcing spouses invoke these statutory provisions to seek enforcement of a premarital agreement in a dissolution proceeding, these provisions come into tension with §§ 46b-81 and 46b-82. In such cases, therefore, we must harmonize the dissolution court's broad discretion, conferred by §§ 46b-81 and 46b-82, with the parties' right and intention to settle the property distribution and/or alimony issues privately, as permitted by the act. Cf. Rainforest Cafe, Inc. v. Dept. of Revenue Services, 293 Conn. 363, 377-78, 977 A.2d 650 (2009) (‘‘we must, if possible, construe two statutes in a manner that gives effect to both, eschewing an interpretation that would render either ineffective'' [internal quotation marks omitted]). At the very least, it should be obvious that premarital agreements have some impact on the operation of §§ 46b-81 and 46b-82. If they did not, premarital agreements and the act would be meaningless.

         This case presents this court with its first opportunity to clarify the impact that a premarital agreement has on a trial court's discretion to structure financial orders pursuant to §§ 46b-81 and 46b-82. In the presence of a premarital agreement that distributes the parties' property but leaves open the question of alimony, the trial court's broad discretion in fashioning financial orders, by necessity, becomes limited. See, e.g., Walker v. Walker, 765 N.W.2d 747, 753-54 (S.D. 2009); see also Hannon v. Hannon, 740 So.2d 1181, 1187 (Fla. App. 1999) (‘‘A primary purpose of [a premarital] agreement is to modify or shrink the general discretion of the dissolution . . . [court] in doing equity between the parties. The agreement itself is intended to define the mutual equities, and the [dissolution court] is not free to ignore its provisions or to render them ineffective.'' [Emphasis added.]). The trial court's discretion in dissolution matters could be thought of as a sliding scale. At one end of this scale, where the court has the greatest discretion to craft financial orders, is the case in which the parties have not executed a premarital agreement. In such cases, the court may begin by unscrambling the marital assets through consideration and weighing of the factors enumerated in § 46b-81. Then, the court might turn to alimony, assessing the alimony recipient's support needs, in accordance with the factors set forth in § 46b-82. Of course, the amount and type of property awarded to the recipient spouse may impact that spouse's ability to meet all, or some, of his or her support needs and thereby affect the appropriate alimony amount. See Walker v. Walker, supra, 751 (‘‘[c]ourts are to consider property division and spousal support jointly because an award of more assets can eliminate or reduce the need for spousal support and vice versa'' [internal quotation marks omitted]). It is this sequence of events-the property distribution, the alimony order, and the assessment of the alimony recipient's ability to provide for his or her own needs in light of the property distribution-that I am referring to when I speak of balancing the property distribution and alimony award. The trial court is balancing the orders in the sense that the alimony recipient's needs and ability to provide for those needs may vary depending on the type and amount of property that he or she is awarded through the equitable distribution of property. See id.

         Conversely, when the parties have entered into a premarital agreement that divides the separate and marital property, but does not address or prohibit alimony, the court's discretion necessarily narrows.[10] Under such circumstances, the trial court no longer has any discretion to divide the parties' property under § 46b-81. Likewise, because the court cannot distribute the property, it no longer has the flexibility to balance the property and alimony awards, at least not in the same sense. Instead, the court is working from a fixed property settlement, one the parties have decided is acceptable, and the court's role is to determine, in light of that property distribution, whether an alimony award should be made and, if so, in what amount and under what terms. The fixed property settlement also influences the alimony obligor's ability to meet an alimony obligation and the alimony recipient's support and maintenance needs.[11] Thus, the trial court's discretion is limited to making an award that provides for the support of the recipient spouse, and the court need only consider how the property settlement impacts that alimony recipient's ability to provide for himself or herself and the alimony obligor's ability to satisfy the alimony obligation. Stated differently, the award should reflect what the alimony recipient needs in order to maintain, to the extent practicable, the lifestyle he or she enjoyed during the marriage, in light of the property distribution reached by the parties. The award should not attempt to counterbalance the property distribution reached by the parties in the name of doing equity.

         My view of the interrelationship between § 46b-81, § 46b-82, and a premarital agreement is supported by the legislative history of the act. See Public Acts 1995, No. 95-170 (P.A. 95-170). The purpose of the act was to ‘‘serve as a guideline and standard for planning for people who are entering into a marriage . . . [and] to provide certainty as to the enforceability of the provisions in premarital agreements . . . .'' Conn. Joint Standing Committee Hearings, supra, p. 2492; see also 38 H.R. Proc., Pt. 9, 1995 Sess., p. 3210, remarks of Representative Ellen Scalettar (‘‘This bill establishes standards and guidelines for premarital agreements. It includes what the agreements may have in them, what they can include, and also under what conditions the agreements will be unenforceable.''). Thus, the act provides prospective spouses with the necessary tools to ensure that, in the unfortunate event of a divorce, they, themselves, may settle their financial affairs and that the trial court will honor their expectations. Such an objective is consistent with the noted public policy of this state to encourage the private resolution of family matters and to foster the ‘‘private settlement of the financial affairs of estranged marital partners . . . .'' (Internal quotation marks omitted.) Billington v. Billington, 220 Conn. 212, 221, 595 A.2d 1377 (1991). These purposes and policies would be undermined, however, if the trial court were allowed to order alimony that unreasonably exceeds the support needs of the alimony recipient.

         With respect to the present case, for the first ten years following the divorce, the plaintiff will receive $102, 500 in monthly support through periodic and lump sum alimony. Thereafter, she will continue to receive monthly periodic unallocated alimony and child support until March, 2029, unless she has remarried or she or the defendant has died. The trial court found, in relation to the alimony award, that time limited alimony was proper and that the purpose of both periodic and lump sum alimony was to provide for the continued support of the plaintiff. In addition, the trial court decided that, ‘‘under all the circumstances, an award of lump sum alimony payable over time, in addition to the award of periodic alimony, [was] appropriate to provide for [the] continuing support of the [plaintiff] . . . given the [plaintiff's] health issues, her lack of recent employment, her primary child care responsibilities for four children, which limits her ability to enter the workforce on a full-time basis, and her limited opportunity to acquire assets in the future.''

         In light of the more limited discretion trial courts have to fashion alimony orders when the parties have entered into a premarital agreement, reviewing courts should carefully evaluate such awards. In this case, the record reveals that the plaintiff's monthly support need is approximately $45, 000.[12] The monthly support that the plaintiff receives pursuant to the trial court's financial orders, however, far exceeds such need. Under the current financial orders, the plaintiff will receive $102, 500 in monthly support over the next ten years. That is approximately $57, 500 per month, or $690, 000 per year, more than she claims to need. Thus, during that ten year period, she will collect $6.9 million in alimony that is not attributable to her need for support and maintenance.[13]

         In light of these facts, it is difficult to understand how the financial support orders in the present case comport with the limited support purpose of alimony. The plaintiff contends that the award was not excessive and results in only minimal surplus, if any.[14] She argues that the periodic award of $40, 000 per month is insufficient to provide for her expenses, let alone the expenses of the children, which the award, as unallocated alimony and child support, was intended to cover.[15] In addition, she asserts that the shortage is even greater when the tax consequences of the alimony award are considered, and, therefore, the lump sum award was necessary to provide for the shortfall between her and her children's needs, on the one hand, and the periodic unallocated alimony and child support award, on the other. Even if one were to accept these arguments, the approximately $6.9 million in alimony that is not attributable to the plaintiff's monthly expenses, which include considerable child care costs; see footnote 15 of this opinion; will certainly provide for the children and the tax consequences of the periodic award, and still result in more than minimally excessive alimony. This is particularly true in light of the fact that the defendant is responsible for a substantial amount of the expenses related to the children. In addition to the child support award, the defendant is required to maintain health and dental insurance for the minor children, provide for 60 percent of their unreimbursed medical and dental expenses, including orthodontic, optical, pharmaceutical and psychological expenses, and pay for one half of the children's extracurricular activities. Moreover, one child has reached the age of eighteen, another child, who is currently sixteen, is quickly approaching the age of majority, and the other two children are not particularly young-fourteen and eleven, respectively.[16]

         The majority acknowledges that, at the very least, the monthly alimony award of $102, 500 exceeds the plaintiff's stated monthly need of $65, 444 per month.[17]Nevertheless, the majority argues that this fact alone does not transmute the lump sum alimony award into a functional property distribution. Instead of ending its inquiry there, however, the majority suggests, in light of the marital standard of living, the factors set forth in § 46b-82, the relative division of the marital estate, and the lack of a specific allocation for child support, that, perhaps, the lump sum alimony award is not excessive or improper at all. I will address each unpersuasive contention in turn.[18]

         I agree that divorcing spouses are entitled, to the extent practicable, to maintain the standard of living they enjoyed during the marriage and that alimony may be awarded for such purpose.[19] See, e.g., Brody v. Brody, 315 Conn. 300, 313, 105 A.3d 887 (2015) (‘‘[t]he generally accepted purpose of . . . alimony is to enable a spouse who is disadvantaged through divorce to enjoy a standard of living commensurate with the standard of living during marriage'' [internal quotation marks omitted]); Dan v. Dan, 315 Conn. 1, 11, 105 A.3d 118 (2014) (‘‘[o]ne reason for the abandoned spouse's entitlement to sufficient alimony to ensure the continued enjoyment of the standard of living that he or she enjoyed during the marriage is that the spouse's efforts increased the other's earning capacity at the expense of [his or] her own'' [internal quotation marks omitted]). I further agree that the parties in the present case enjoyed a high standard of living. I cannot agree, however, that the alimony award is necessary for the plaintiff to maintain such a standard.

         The trial court made no finding regarding the marital standard of living or the monthly marital expenses. Nevertheless, pursuant to Practice Book § 25-30 (a), both the plaintiff and the defendant submitted financial affidavits to the trial court, which cataloged their current incomes, expenses, assets, and liabilities around the time of the dissolution. Our cases have made clear that courts are entitled to rely on the truth and accuracy of such affidavits. See, e.g., Billington v. Billington, supra, 220 Conn. 219. If the trial court is entitled to rely on such affidavits, I see no reason why this court cannot also rely on such affidavits, particularly when the trial court has not discredited such affidavits and appears to have relied on them itself. The plaintiff's affidavit reveals monthly expenses of approximately $45, 000, and a cursory review of her affidavit leaves the reviewer with but one reasonable conclusion, namely, that $45, 000 per month is the cost of maintaining her current lifestyle, not, as the majority seems to suggest, merely the cost of her basic living expenses. A sampling of the plaintiff's monthly expenses is illustrative: more than $2000 for clothing, approximately $1300 for ‘‘personal care, '' including costs for hairdressing, manicures, pedicures, massages, and fitness classes, and more than $3800 for entertainment, travel, and vacations. The defendant's affidavit discloses monthly expenses of $97, 645. Contained in that amount is a monthly expense for alimony and child support in the amount of $46, 000. When the alimony and support expense is subtracted, the defendant is left with $51, 645 in his own living expenses. Given the similarity in the monthly expenses disclosed by the plaintiff and the defendant, it appears from the record that, in order to sustain their current lifestyle, the parties each need between $45, 000 and $52, 000 per month. Such a conclusion is further supported by the parties' stipulation for unallocated alimony and child support, pendente lite, of $46, 000 per month. Of course, the trial court made no finding in this regard, and it is not the province of this court to do so. I highlight these facts simply to make the following point: no trial court could reasonably conclude that an alimony award of $102, 500 per month, an amount that is nearly 230 percent of the plaintiff's monthly expenses, is proper based on the facts of the present case. Moreover, the record reveals no evidence that would support a finding that the plaintiff's monthly expenses-and, therefore, the cost of maintaining her current lifestyle- are anywhere near $102, 500.

         Next, the majority notes, and correctly so, that the marital standard of living, or station, and expenses, or needs, of the parties are but two of the statutory factors that the trial court is to consider when entering alimony orders. Consideration of all the factors, the majority states, ‘‘militates against characterizing the lump sum alimony award as a property distribution.'' Text accompanying footnote 25 of the majority opinion. I presume this means that the majority has concluded, in light of the statutory factors set forth in § 46b-82, that the alimony award is not excessive or improper. See footnote 18 of this opinion. I disagree.

         First, the majority mistakenly assumes that the § 46b-82 factors go exclusively to the alimony award amount, and, therefore, because that statute includes factors in addition to ‘‘station'' and ‘‘needs, '' an alimony award may properly exceed the recipient's support and maintenance needs. Section 46b-82 does direct the trial court to consider factors other than station and need, such as ‘‘the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health . . . occupation, amount and sources of income, earning capacity, vocational skills, education, employability, [and] estate . . . of each of the parties . . . .'' General Statutes § 46b-82 (a). These factors are not only relevant for determining the amount of an alimony award, but they must also be considered ‘‘[i]n determining whether alimony shall be awarded, and the duration . . . of the award . . . .'' (Emphasis added.) General Statutes § 46b-82. To be sure, not all factors go to the cost of maintaining the recipient's lifestyle. Nonetheless, they do relate to the recipient's support and maintenance needs. More specifically, the factors help the trial court determine, in light of the recipient's assets and income, the amount and duration of alimony necessary for the recipient to maintain the lifestyle that he or she enjoyed at the time of dissolution. For example, the court is to consider the age, health, occupation, amount and sources of income, earning capacity, vocational skills, education, and employability of the parties. These factors, as they relate to the recipient spouse, inform the court of the recipient's current income or potential future income and, therefore, his or her ability or inability, as the case may be, to provide for his or her own support needs, at least in part. For example, if the recipient did not work for the greater portion of the marriage, like the plaintiff in the present case, such recipient's age, health, vocational skills, education, and employability may lead the trial court to conclude that he or she, despite having been unemployed during the marriage, can, in time, find employment, potentially reducing the amount, or shortening the duration, of the alimony needed.[20]

         Second, and relatedly, it is an axiom of matrimonial law that the purpose of alimony is to provide the recipient with support and maintenance. See, e.g., Dan v. Dan, supra, 315 Conn. 10 (‘‘[h]istorically, alimony was based [on] the continuing duty of a divorced husband to support an abandoned wife and should be sufficient to provide her with the kind of living [that] she might have enjoyed but for the breach of the marriage contract by the [husband]'' [internal quotation marks omitted]); Simms v. Simms, 283 Conn. 494, 503, 927 A.2d 894 (2007) (‘‘[t]he traditional purpose of alimony is to meet one's continuing duty to support'' [internal quotation marks omitted]); Gay v. Gay, 266 Conn. 641, 647, 835 A.2d 1 (2003) (‘‘[t]he purpose of both periodic and lump sum alimony is to provide continuing support'' [internal quotation marks omitted]). Thus, the § 46b-82 factors are intended to help the trial court determine, first, whether alimony is necessary for the recipient's support and maintenance, and, second, if alimony is necessary, the amount and duration necessary to provide for the recipient's support and maintenance. The factors do not, however, transform alimony into something it is not. Stated differently, the factors are not to be utilized to justify an award that exceeds the purpose of alimony, namely, support and maintenance.

         The alimony award is also justified, the majority suggests, due to the disparity in the premarital agreement's distribution of the marital assets. The majority emphasizes that the defendant received more than $25 million in assets as a result of the divorce, compared to the approximately $4.5 to $5 million in assets that the plaintiff received.[21] To support its suggestion that the alimony award is proper in light of the premarital agreement's comparative property distribution, the majority cites § 46b-82, particularly, the factor directing the trial court to consider the estate of each party. Section 46b-82 provides no support for this approach. Indeed, the court must consider the estate of both spouses. Consideration of the estate of the alimony obligor is necessary to determine his or her ability to pay alimony, and, likewise, consideration of the estate of the alimony recipient is necessary to determine his or her need for alimony. Considering the estates of the parties in a relative fashion, as the majority does in the present case, however, is an entirely different application of that factor. The majority's suggestion that a large lump sum alimony award, one not necessary to provide for the recipient's support and maintenance, might be justified due to the comparative share of the assets received by each spouse in accordance with a premarital agreement is entirely antithetical to the concept of such agreements. In fact, approving a $7.5 million lump sum alimony award because the parties' premarital agreement awarded the obligor $25 million in assets and the recipient between $4.5 and $5 million in assets is simply an attempt by the court to rewrite the parties' agreement. Our case law makes clear that the courts are not to second-guess the wisdom or question the fairness of premarital agreements that are entered into voluntarily. Cf. Crews v. Crews, 295 Conn. 153, 167, 989 A.2d 1060 (2010) (‘‘whether the trial court or this court thinks the [premarital] agreement was a good bargain for the plaintiff does not enter into the analysis of [its enforce-ability]'').

         In a final attempt to justify the lump sum alimony award in the present case, the majority claims that the trial court did not specify how much of the unallocated alimony and child support award was intended for the children's support, rather than the plaintiff's. Although the trial court did not expressly state what the child support award amount was, we are not without guidance. Using the trial court's findings in the present case and the Child Support and Arrearage Guidelines (guidelines) in effect at the time of the dissolution, we can, at the very least, determine the baseline for child support. To assist courts in calculating equitable and consistent child support orders, the guidelines contain a schedule of basic child support obligations based on the number of children and the parents' combined net weekly income. See Regs., Conn. State Agencies § 46b-215a-2b (f).[22] In the present case, the parties have four minor children and a combined net weekly income of $12, 097. For families with four minor children, however, the schedule only provides basic child support obligations for families with a combined net weekly income ranging between $370 and $4000. See id. ‘‘When the parents' combined net weekly income exceeds [$4000], child support awards shall be determined on a case-by-case basis, and the current support prescribed at the [$4000] net weekly income level shall be the minimum presumptive amount.'' Id., § 46b-215a-2b (a) (2). In accordance with the guidelines, therefore, the presumptive minimum child support obligation in the present case is $765 per week.[23] In Maturo v. Maturo, 296 Conn. 80, 995 A.2d 1 (2010), this court explained that, when a trial court is making a case specific child support determination for a family with a combined net weekly income that exceeds the upper range of the schedule, it must still follow the principle on which the guidelines are based, namely, ‘‘that the child support obligation as a percentage of the combined net weekly income should decline as the income level rises.'' Id., 95. Thus, the rule to be gleaned from Maturo is that the minimum child support order in high income cases should presumptively be no less than ‘‘the current support prescribed at the [$4000] net weekly income level''; Regs., Conn. State Agencies § 46b-215a-2b (a) (2); for a family with the same number of minor children, and the presumptive maximum order should ‘‘not exceed the [maximum] percent [set forth in the schedule] when the combined net weekly income of the family exceeds $4000 . . . .'' Dowling v. Szymczak, 309 Conn. 390, 401, 72 A.3d 1 (2013). With these principles in mind, I conclude that the presumptive appropriate range for the child support order in the present case is between $765 and $2314 per week-19.13 percent of the combined net weekly income. See id. (child support obligation for high income family should not exceed percent of combined net weekly income used for family with same number of minor children at highest combined net weekly income set forth in schedule); Maturo v. Maturo, supra, 96 (presumptively, support order for family with combined net weekly income in excess of income range covered by schedule should not exceed same percentage of income provided for family with same number of children and highest combined net weekly income provided by schedule); see also Regs., Conn. State Agencies § 46b-215a-2b (f) (setting child support obligation percentage for four minor children and combined net weekly income of $4000 at 19.13 percent). Thus, the presumptive maximum monthly child support, about $10, 000, accounts for only a small amount of the excessive alimony. Even if it is assumed that the trial court found it necessary to deviate upward, there is no evidence in the record that would support the magnitude of the excessiveness of the award in the present case. Moreover, and as I explained in response to the plaintiff's argument on this point, the plaintiff's financial affidavit contains significant costs related to child care. Thus, simply stacking the presumptive child support amount on top of the expenses that the plaintiff listed in her financial affidavit would likely result in the double counting of some costs. Furthermore, the defendant is obligated to pay, in addition to the alimony and child support award, a substantial portion of the child care expenses, including health and dental insurance, 60 percent of unreimbursed medical and dental expenses, and one half of the expenses from the children's extracurricular activities.

         Because the monthly alimony obligation of $102, 500 unreasonably exceeds the plaintiff's monthly support need of $45, 000, and despite the arguments advanced by the plaintiff and the majority, I conclude that the lump sum alimony award, in conjunction with the periodic alimony award, is excessive. I concede, however, that this fact alone does not make the lump sum alimony award a functional property distribution. Indeed, for the alimony award to function as a property distribution, it must result in the transfer to the plaintiff of property that the defendant was awarded pursuant to the premarital agreement. The lump sum alimony award in the present case results in such a transfer.[24]

         The defendant has a monthly income of approximately $80, 833. The alimony obligation, however, is $102, 500 per month. Thus, the defendant's monthly income is insufficient to satisfy the monthly alimony obligation, and, therefore, the defendant will necessarily need to invade his assets-assets that he was awarded under the premarital agreement-to cover the balance of the obligation, nearly $22, 000 per month. Of course, the need to invade assets, in and of itself, does not make the lump sum alimony award a functional property distribution. See Simms v.Simms, supra, 283 Conn. 505 (trial court is not without authority to order alimony simply because such order would require obligor to invade his or her assets); see also Brody v. Brody, 136 Conn.App. 773, 790, 51 A.3d 1121 (2012) (‘‘The defendant may elect to pay the [lump sum alimony] award out of his separate assets, but how he chooses to satisfy his obligation under the court's order is his decision. The court did not order him to pay the award out of his separate assets. That he plans to do so does not invalidate an otherwise valid award of alimony.''), rev'd in part on other grounds, 315 Conn. 300, 105 A.3d 887 (2015). When an alimony award is necessary to provide for the support and maintenance of the recipient, the fact that the obligor needs to invade his or her assets to satisfy the obligation does not change the award's function, which is to provide support and maintenance. On the other hand, ...


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