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Merk-Gould v. Gould

Court of Appeals of Connecticut

September 4, 2018

LINDA MERK-GOULD
v.
ROBERT F. GOULD, JR.

          Argued May 30, 2018

         Procedural History

         Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk and tried to the court, Tin-dill, J.; judgment dissolving the marriage and granting certain other relief; thereafter, the court denied the defendant's motion to reargue, and the defendant appealed to this court. Reversed in part; further proceedings.

          Campbell D. Barrett, with whom were Johanna S. Katz and, on the brief, Jon T. Kukucka, for the appellant (defendant).

          Kenneth J. Bartschi, with whom were Dana M. Hrelic and, on the brief, Wayne Effron, for the appellee (plaintiff).

          Lavine, Alvord and Keller, Js.

          OPINION

          ALVORD, J.

         The defendant, Robert F. Gould, Jr., appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Linda Merk-Gould, and entering certain financial and property orders. On appeal, the defendant claims that the court: (1) improperly ordered tax-free alimony to the plaintiff; (2) erroneously found that the defendant had an annual earning capacity of $200, 000; (3) improperly awarded the plaintiff 60 percent of the pretax amount of the defendant's pension; (4) abused its discretion in valuing the defendant's interests in several private equity companies on the basis of the cost of the assets at the time of purchase, rather than the value of the assets as of the date of the dissolution; (5) abused its discretion in awarding the plaintiff attorney's fees; and (6) abused its discretion in denying his motion for a mistrial. Because we agree with the defendant's second and fourth claims, we reverse in part the judgment of the trial court and remand the case for a new trial on the financial and property orders.[1]

         The following facts, as found by the trial court, and procedural history are relevant to this appeal. The parties were married on May 25, 1987, and have two adult children. Both parties entered the marriage with assets, and both inherited money from family members during the marriage. The parties kept the majority of their income and assets separate during the marriage, and the defendant has significantly greater assets than the plaintiff. The plaintiff, who was sixty-four at the time of trial, had ended her career at age forty-eight because of health reasons. The defendant was sixty-five years old at the time of trial, in good health, and well educated, having received an undergraduate degree and a master of business administration degree. The defendant left full-time employment fourteen years prior to trial, at age fifty-one, and ‘‘has subsisted on passive income from investments and [distributions from] his [PricewaterhouseCoopers LLP] Partner Retirement Plan [(pension)].'' Specifically, the defendant ‘‘has earned income as a ‘self-directed' investor since 1980 such that he did not have to seek gainful employment after 2002 to meet monthly expenses (which now total $11, 709).''

         On May 1, 2013, the plaintiff commenced this dissolution action. The defendant filed an answer and a cross-complaint. The matter was tried to the court over eight days. On January 31, 2017, the court rendered judgment dissolving the parties' marriage, finding that the defendant was at fault for the breakdown of the marriage. In its memorandum of decision, the court made orders regarding property distribution, alimony, and attorney's fees. The court awarded alimony on the basis of the defendant's earning capacity, finding that ‘‘[t]he credible evidence before the court shows that the defendant can reasonably be expected to earn $200, 000 (net) annually.'' Utilizing that finding of fact, the court ordered alimony to the plaintiff in the amount of $7500 per month beginning February, 2017, until the death of either party or the remarriage of the plaintiff, whichever should occur first. The court ordered that the alimony payments ‘‘will not be taxable to the plaintiff nor deductible by the defendant.''

         With respect to property distribution, the plaintiff, in her proposed orders, requested that the court divide all bank accounts, publicly-traded securities, private equity, business annuities, and frequent flier miles listed on the defendant's financial affidavit and award 60 percent of such assets to the plaintiff. She further requested that ‘‘the defendant shall receive each of the private equity companies valued at cost, i.e., the amount paid by the defendant . . . for his interest in the company in question, and the plaintiff shall receive a corresponding amount in cash.'' In its memorandum of decision, the court adopted the plaintiff's proposed order and incorporated it as an order of the court.

         The court also awarded the plaintiff attorney's fees in the amount of $220, 346.85[2] and 60 percent of the pretax amount of each payment the defendant receives from his pension. The court ordered that the pension payments were not taxable to the plaintiff nor deductible by the defendant, and further that such payments shall continue regardless of the plaintiff's cohabitation or marriage. The defendant filed a motion to reargue, which the court denied on February 24, 2017. This appeal followed.

         We begin by setting forth the standard of review. ‘‘An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . 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. . . . Furthermore, [t]he trial court's findings [of fact] are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on ...


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