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Horey v. Horey

Court of Appeals of Connecticut

May 2, 2017


          Argued November 28, 2016

         Appeal from Superior Court, judicial district of New London at Norwich, Carbonneau, J.

          Lloyd L. Langhammer, for the appellant (defendant).

          William E. McCoy, for the appellee (plaintiff).

          Lavine, Alvord and Harper, J.


          HARPER, J.

         The defendant, Joyce A. Horey, appeals from the financial orders relating to the judgment of the trial court dissolving her marriage to the plaintiff, Alan L. Horey. On appeal, the defendant claims that the trial court abused its discretion by entering an alimony order that terminates upon the sale of the plaintiff's business. She argues that such a time limited alimony[1]order is inconsistent with the facts found by the court, and that the court, therefore, reasonably could not have concluded as it did. For the reasons that follow, we disagree and, accordingly, affirm the judgment of the trial court.

         The following procedural history and facts found by the trial court are relevant to the defendant's appeal. The parties were married for approximately forty-three years. Over the past twenty-three years, most of the parties' income appears to have been derived from the plaintiff's business, Professional Financial Services, LLC (LLC), which sells insurance products and investments. The plaintiff is the sole member of the LLC and has structured the LLC's business to derive ‘‘trails income.'' This means that when the plaintiff sells a financial product or insurance policy, he receives a smaller commission at the time of sale than he otherwise would be entitled to, and in return receives a residual percentage of a client's future premiums or payments for as long as the client retains the original product or policy. In recent years, the plaintiff's annual gross income from all sources, including the trails income, has totaled approximately $150, 000. The plaintiff expects this income to hold steady for the next two years, but he ultimately plans to sell the business and retire, at which point the trails income would cease. Despite the cessation of this income, the plaintiff testified that he may be required by the purchaser of the LLC to remain involved for some time in order to facilitate the new owner's relationship with existing clients and to preserve the trails income for the new owner. The court madeno findings regarding potential compensation for this continued involvement post-sale of the LLC.

         On July 22, 2015, the court dissolved the parties' marriage and entered numerous orders regarding the division of marital property, debts, and set forth the plaintiff's obligation to pay alimony to the defendant in the amount of $1000 per week. The order contained no limitation on future modifications of the alimony award; however, it did provide for alimony to terminate upon the sale of the LLC. The court specified that any such sale must be an arm's length transaction at fair market value and that the plaintiff must pay one half of the net proceeds of the sale to the defendant. This payment to the defendant is to mirror the form of the payment made to the plaintiff, whether lump sum, installments, or some combination thereof, thus ensuring parity. The court expressly retained jurisdiction over issues involving the sale of the LLC in order to effectuate the intent of its orders to divide the assets of the parties equitably. The court also provided for the equal division ofpensions, other retirement assets, bank accounts, real property, and sale proceeds from two residential properties.[2]

         On July 30, 2015, the defendant filed a motion to reargue, among other issues, the termination of alimony upon the sale of the LLC. In that motion, the defendant argued that the court's orders were designed expressly to ensure equitable alimony payments to the defendant, but nevertheless fail to provide for a scenario in which the plaintiff could structure his sale of the LLC to avoid payments to the defendant. In particular, the defendant argued the plaintiff could structure the sale to shift a significant portion of the sale proceeds from an upfront purchase payment to a post-sale consultation fee or some similar arrangement. Under the court's alimony order, the defendant would not be entitled to receive any portion of the funds paid to the plaintiff after the sale, which rendered the alimony award unreasonable and, therefore, an abuse of discretion by the court.

         On August 25, 2015, the court granted the motion to reargue and heard oral arguments from the parties. At the conclusion of this hearing, the court stated that in drafting the alimony order, it had been aware that General Statutes § 46b-86 deems all alimony awards to be modifiable unless and to the extent that the court's decree precludes modification. The court stated that it specifically had worded the alimony order so as to allow modification in the future. The court acknowledged the possibility that the plaintiff could attempt to structure the sale of the LLC in a manner designed to avoid obligations to the defendant, but nevertheless noted that its order set standards designed to avoid this possibility. Finally, the court noted that it expressly retained jurisdiction over issues arising from the sale of the LLC in order to correct any inequities that may arise in the sale and to make any alteration of the alimony award made necessary by the sale of the LLC. For those reasons, the court declined to revise the alimony order. This appeal followed.

         On appeal, the defendant argues that the court abused its discretion in ordering that alimony payments terminate upon the sale of the LLC. She asserts that the court's order was logically inconsistent with its factual findings, particularly that she lacks the ability to be financially self-sufficient. She argues it was unreasonable for the court to terminate alimony upon the sale of the LLC under such circumstances. Additionally, she argues that this limitation of the alimony award also failed to give effect to the court's intention to equitably divide the income the plaintiff derives from the LLC because the court's order did not account for how the defendant will share in any income the plaintiff derives from the LLC after it is sold.

         We begin by setting forth the standard of review applicable to a court's decision regarding financial orders. ‘‘We review financial awards in dissolution actions under an abuse of discretion standard. . . . In order to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.'' (Internal quotation marks omitted.) Procaccini v. Procaccini, 157 Conn.App. 804, 808, 118 A.3d 112 (2015). ‘‘In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.'' (Internal quotation marks omitted.) Wood v. Wood, 170 Conn.App. 724, 728, A.3d (2017).

         ‘‘The 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.) Brody v. Brody, 315 Conn. 300, 313, 105 A.3d 887 (2015). ‘‘In addition to the marital standard of living, the trial court must also consider the factors in [General ...

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