Hornung v. Hornung

• Decision Date: 20 September 2016
• Docket Number: SC 19361
• Citation: 323 Conn. 144,146 A.3d 912
• Parties: Marjorie Hornung v. Robert Hornung
• Court: Connecticut Supreme Court

323 Conn. 144

146 A.3d 912

Marjorie Hornung

v.Robert Hornung

SC 19361

Supreme Court of Connecticut.

Argued November 3, 2015

Officially released September 20, 2016

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.

ROBINSON, J.

The defendant, Robert Hornung, appeals¹ 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. at 133, 869 A.2d 164 ; 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...