Dumbauld v. Dumbauld

• Decision Date: 08 March 2016
• Docket Number: No. 37262.,37262.
• Citation: 136 A.3d 669,163 Conn.App. 517
• Court: Connecticut Court of Appeals
• Parties: Marea A. DUMBAULD v. Theodore E. DUMBAULD.

163 Conn.App. 517

136 A.3d 669

Marea A. DUMBAULD

v.Theodore E. DUMBAULD.

No. 37262.

Appellate Court of Connecticut.

Argued Nov. 18, 2015.

Decided March 8, 2016.

Charles T. Busek, Norwalk, for the appellant (defendant).

Reuben S. Midler, Greenwich, with whom, on the brief, was Michael J. Weil, for the appellee (plaintiff).

LAVINE, BEACH and MIHALAKOS, Js.

MIHALAKOS, J.

In this ongoing marital dissolution action, the defendant, Theodore E. Dumbauld, appeals from the judgment of the trial court awarding the plaintiff, Marea A. Dumbauld, pendente lite alimony and child support, and ordering the defendant to pay family bills, educational expenses for two college age children of the marriage, and health care costs for the plaintiff and the parties' four children.¹ On appeal, the defendant claims that the trial court (1) abused its discretion by exceeding the bounds of a proper alimony pendente lite award, (2) committed error by ordering “that the defendant pay the family bills and expenses he had been paying voluntarily” and by characterizing these payments as alimony,² and (3) abused its discretion by exceeding the bounds of a proper order regarding college expenses. We reverse the judgment of the trial court.

The plaintiff commenced a dissolution of marriage action on June 8, 2012, and thereafter filed multiple pendente lite motions. The trial court heard testimony over four days, and issued a memorandum of decision on June 4, 2014, in which it made the following findings of fact.

The parties were married on May 16, 1992. They have four children, three of whom have reached the age of majority. At the time of the court's memorandum of decision, two of them were attending high school, and two were attending college and living on campus. The plaintiff was the full-time caretaker for the two children who live at home. The plaintiff held a 50 percent interest in Bella Tu, LLC, a company that designs tops, tunics, and dresses and sells them by way of trade shows to clothing boutiques. The business had not generated a profit since its inception in 2009. The defendant had managed and operated a variety of hedge funds, although his employment at the time was as the chief executive officer of Simulyze, a defense contractor he formed in 2012.

Prior to and during the dissolution action, the parties' monthly expenses totaled approximately $50,000.³ They paid these expenses through a combination of the defendant's base salary of $252,000 and the use of various liquid assets. Since February, 2013, the defendant had been withdrawing funds from a business bank account listed as Trident Advisors, LLC, to make up for the shortfall between his salary and the parties' monthly expenses.⁴ The balance in this liquid account was $332,000 as of November 8, 2013.

The court found in pertinent part: “Based on their prior spending of roughly $50,000 a month to maintain their lifestyle prior to their separation, which neither party disputes, the court finds that $50,000 is the monthly amount the parties spent when they were together as a couple. The court also finds that the defendant has been withdrawing liquid assets to the tune of $348,000 approximately and using his $252,000 salary to support their $600,000 a year way of life before they separated. In light of the foregoing, the court further finds that $600,000 a year or $50,000 a month is what is needed to support the family's expenditures. The court makes the further finding that the defendant can afford to pay $50,000 a month to maintain their previous standard of living.” It also found: “Although the plaintiff testified that she needed to borrow funds from her family and friends and charge expenses because the $1250 a week she has been receiving from the defendant was insufficient to meet her needs, the court finds her testimony in this regard is not credible and further finds that she has been borrowing nearly $10,000 more each month in excess of the parties' normal spending rate of $50,000 a month for their ordinary living expenses. Additionally, the court finds that the plaintiff's allegation that the defendant did not pay certain bills and refused to pay invoices that were payable in advance was not persuasive. The credible evidence in the record shows that the defendant had either paid [or] was in the process of paying ... invoices that were actually due and payable as had been his practice when they lived together.”

The court then ordered the defendant to pay alimony pendente lite in the amount of $1250 per week, as he had been doing, to the plaintiff. It also ordered “that the defendant continue to pay the family bills and expenses he has been paying voluntarily prior to the issuance of this order.” It further ordered that he pay child support of $603 per week; all postsecondary education expenses; and all medical, dental, orthodontic, and other medical expenses for the plaintiff and the four children, including insurance premiums, copays, and other unreimbursed expenses. It also granted the plaintiff's motion for counsel fees in part and granted the plaintiff's motion for exclusive possession of the family domicile, with the caveat that the defendant was permitted to use the property for the purpose of exercising his family time, provided he gave sufficient notice to the plaintiff.⁵

On June 24, 2014, the defendant moved for clarification of the court's decision and moved to open and reargue the court's decision, claiming that the orders exceeded his ability to pay. He further claimed, in pertinent part, that the total of family expenses, alimony, and child support the court had ordered totaled $58,000 per month, which was more than the $50,000 the court found he was able to pay. Moreover, the parties' financial affidavits included child support costs, the voluntary payments the defendant had been making to the plaintiff prior to the pendente lite award, and the postsecondary education payments the defendant had been making, resulting in double counting. The court permitted oral argument on August 15, 2014,⁶ and subsequently denied both motions on the ground that the court's memorandum of decision spoke for itself and the defendant had failed to cite sufficient legal grounds. The defendant then filed the present appeal.⁷

The defendant claims on appeal that the two alimony orders,⁸ for weekly payment to the plaintiff and for payment of family expenses, exceeded the bounds of a proper alimony pendente lite award, and thereby constituted an abuse of discretion.⁹ He also claims that the trial court exceeded the bounds of a proper order regarding college expenses.

At the outset, we set 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.... 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.” (Citation omitted; internal quotation marks omitted.) Williams v. Williams, 276 Conn. 491, 496–97, 886 A.2d 817 (2005). Additional facts will be set forth as necessary.

I

The defendant claims that the court improperly ordered alimony pendente lite in excess of his net income, which it found to be $15,688.21 per month, and impermissibly required him to use assets in order to meet his obligations. In other words, the defendant claims that the court's order amounts to an impermissible distribution of marital assets pendente lite. The plaintiff responds that the court properly imputed additional income to the defendant on the basis of the parties' prior spending habits.¹⁰ She also asserts that the pendente lite alimony award of $1250 per week, $5416.66 per month, taken by itself, is not excessive when compared to the defendant's net income of $15,688.21 per month. We agree with the defendant.

General Statutes § 46b–83 (a) provides in relevant part: “At any time after the return day of a complaint under section 46b–45 or 46b–56 or after filing an application under section 46b–61, and after hearing, alimony and support pendente lite may be awarded to either of the parties from the date of the filing of an application therefor with the Superior Court. Full credit shall be given for all sums paid to one party by the other from the date of the filing of such a motion to the date of rendition of such order. In making an order for alimony pendente lite, the court shall consider all factors enumerated in section 46b–82, except the grounds for the complaint or cross complaint, to be considered with respect to a permanent award of alimony....”¹¹ The factors enumerated in General Statutes § 46b–82 (a) are “the length 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 and the award, if any, which the court may make pursuant to section 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.”¹² “The court is to consider these factors in making an award of alimony, but it need not give each factor equal weight.... We note also that [t]he trial court may place varying degrees of importance on each criterion according to the factual circumstances of each case.... There is no additional requirement that the court specifically state how it weighed the statutory criteria or explain in detail the importance assigned to each statutory factor.” (Citations omitted; internal quotation marks omitted.) Kaczynski v. Kaczynski, 124 Conn.App. 204, 211,...