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Oudheusden v. Oudheusden

Court of Appeals of Connecticut

May 21, 2019


          Argued February 14, 2019

         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, from which the defendant appealed to this court; thereafter, the court, Tindill, J., granted the defendant's motion for clarification. Reversed in part; further proceedings.

          Yakov Pyetranker, for the appellant (defendant).

          Scott T. Garosshen, with whom was Kenneth J. Bartschi, for the appellee (plaintiff).

          Alvord, Keller and Eveleigh, Js.


          ALVORD, J.

         The defendant, Peter Oudheusden, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Penny Oudheusden, and entering certain financial orders. On appeal, the defendant claims that the court (1) improperly double counted a marital asset[1] for purposes of the property division and spousal support awards, and (2) abused its discretion in failing to make equitable orders in the division of the marital estate. We agree and, accordingly, reverse in part the judgment of the trial court and remand the case for a new trial on all financial issues.

         The record reveals the following facts, as found by the trial court[2] or undisputed, and procedural history. The parties were married on June 29, 1985, and have three adult children. On April 1, 2016, the plaintiff commenced the present action against the defendant seeking to dissolve their thirty year marriage on the ground of irretrievable breakdown. Following extensive discovery disputes, the dissolution trial took place over nine days in April and May, 2017. The defendant was self-represented at the time of trial.[3] During the trial, the court heard testimony from the plaintiff, the defendant and each of their expert witnesses, and the court admitted 199 exhibits into evidence.

         The plaintiff was born in Greenwich in 1961. The parties started dating in high school. Prior to their marriage in 1985, the plaintiff obtained an undergraduate degree in international marketing and a master's degree in education. She was employed as a teacher until 1988, when she left the workforce to raise their family. The parties agreed that the plaintiff would remain a fulltime homemaker, and the defendant would provide the financial support for the family.

         The defendant has a double major in English and computer science. Hehad worked atvarious companies during the earlier years of the marriage, which often resulted in the family moving from one location to another. In 1997, the defendant started his own business called Connecticut Computer & Consulting, Inc. At that time, the defendant was the sole employee of the corporation, which is a consulting practice with clients in the pharmaceutical industry. The defendant formed his second business, WriteResult, LLC, a limited liability company, in 2007. This company complements Connecticut Computer & Consulting, Inc., and provides services to the same or comparable clients. WriteResult, LLC, uses different computer technologies to collect patient data, and there is a heavy hardware component involved in its work. The defendant owns and manages both businesses, and he derives all of his income from his self-employment. The plaintiff always has been supportive of the defendant's business endeavors.

         The plaintiff testified that, during the course of the marriage, the defendant abused her emotionally and, at times, physically. The plaintiff also was troubled by the defendant's consumption of alcohol. Problems surfaced early in the marriage when the defendant told the plaintiff that their financial situation was dire, and he continued to voice his concerns about expenditures throughout the marriage. The plaintiff believed the defendant's statements because she trusted him, and she never sought documentation to verify their monetary problems. Creditors called frequently. She acknowledged that she had been aware from the beginning of the marriage until the time she initiated the dissolution proceedings that they had outstanding federal and state tax liabilities.

         Nevertheless, the parties purchased a home in Greenwich for $1.5 million in 2002, and proceeded to engage contractors to perform improvements and renovations to the marital property. Their three children attended private and public schools before their college years. Following their secondary education, one son attended law school and one son attended medical school. Their daughter attended Dartmouth College. The parties were in total agreement when it came to sending their children to these educational institutions, and the defendant paid all of the substantial expenses from his earnings.

         At the time of trial, the plaintiff was fifty-five years old and the defendant was fifty-eight years old. With respect to their health, the plaintiff had a little bit of trouble with her hearing, and she testified that she recently had ordered hearing aids. She also testified that she had been diagnosed with melanoma on the side of her nose in 2011, had it surgically removed, and was cancer free at that point. The defendant testified that he was in good health. He acknowledged that he considered himself an alcoholic, but he indicated that he had not had a drink in nearly six months. With respect to employment, the plaintiff was not working and no longer had a current license to teach. The defendant had hoped to retire when he reached sixty-five years of age and, if possible, engage in some limited consulting work. He testified that the parties did not have a retirement account.

         Aside from the two businesses, the only other significant marital property was the marital home in Greenwich. It had an appraised value of $1.7 million, but was encumbered by two mortgages and tax liens. The defendant ceased making payments on the first mortgage in October, 2015, and a foreclosure action was pending at the time of trial. The parties had significant debts. In addition to federal and state tax liabilities, [4]the plaintiff and the defendant, who previously had been represented by counsel in this action, owed substantial fees to their counsel and their experts.

         The fair market value of the defendant's two businesses was a key issue in these proceedings. The plaintiff's expert, James R. Guberman, and the defendant's expert, Mark S. Gottlieb, provided extensive testimony as to the methodologies used and the conclusions reached as to valuation. The court credited Guberman's testimony that the combined fair market value of Connecticut Computer & Consulting, Inc., and WriteResult, LLC, was $904, 000. The court further found that the defendant's gross annual income from these businesses was $550, 000.

         The parties submitted current financial affidavits and proposed orders to the court at the conclusion of the trial. During his cross-examination of Guberman, his closing argument, and in his proposed orders, the defendant cautioned the court against double counting the value of his businesses and his salary in dividing the marital estate and in awarding alimony. Additionally, the plaintiff's counsel, in his closing argument and in the plaintiff's proposed orders, acknowledged the danger of double counting an asset for purposes of the property division and support awards. In his closing argument, the plaintiff's counsel stated: ‘‘[A]nd I will concede this to [the defendant]. And this is reflected in paragraph 2.4 of article two of our proposed orders that were filed today.[5] Whatever value the court attributes to the business, the court has to, and should back out a reasonable salary for the officer and owner of the company.

         ‘‘Because if the court is going to set a support order based on his income, it would not be fair and equitable to also ask that he ...

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