CT Supreme Court’s latest on alimony: The Oudheusden case

On Behalf of | Jan 31, 2022 | Alimony

Connecticut law does not provide an absolute right to alimony. Courts are not provided with a mathematical formula, or a “alimony calculator” to determine value should the trial judge determine that spousal maintenance is appropriate. Litigation involving disputes over spousal support may be complex under the individual circumstances of the dispute, as well as the many factors that courts consider in deciding issues related to alimony. It is important for litigants to work with matrimonial attorneys who investigate the facts, develop the trial record and present comprehensive evidence to allow the court to weigh the full range of details to arrive at an appropriate result.

In April 2021, the Supreme Court of Connecticut concluded that the trial judge should not have awarded lifetime, nonmodifiable spousal support of $18,000 monthly because the court had failed to consider all the factors required by state statute. Oudheusden v. Oudheusden, 338 Conn. 761 (2021). The trial court had also ordered that the amount and duration of the award could not be modified in the future, but that support payments would end when the wife died or remarried, lived with someone else or entered into a civil union.

The Oudheusden’s financial history

The Oudheusden’s marriage was fairly traditional in that the husband supported his wife and children financially for more than 30 years, while the wife raised the children and did not work outside the home. According to the opinion, she “made significant, nonfinancial contributions to the family …” The husband caused the marriage’s breakdown.

The trial court found that the husband’s gross yearly income was $550,000 from his two businesses, which were worth $904,000 together. He kept business and financial information secret from his wife throughout the marriage.

The trial court held that the wife needed a permanent, periodic (paid at regular intervals) alimony because she needed financial security after not working outside the home for so long, letting her teaching license lapse, lacking retirement security and having “limited earning potential.” She was 55 with a hearing impairment and history of cancer.

Key to this case, the trial court did not make factual findings about the husband’s earning capacity, age or health.

On appeal, the appellate court reversed and sent the case back to the trial court, but the Supreme Court agreed to consider it.

Statutory factors in alimony decisions

The Connecticut alimony statute directs judges making decisions about alimony to weigh each factor in a long list. CT Gen Stat §46b-82.

While the court does not need to make written findings about each factor, it must be clear from the decision that the judge did look at all of them:

  • Each litigant’s evidence
  • Marriage length
  • Causes of divorce
  • Each party’s age
  • Each spouse’s health
  • Their station (standard of living or lifestyle)
  • Their occupations
  • Amount and sources of all income
  • Each of their earning capacity
  • Their vocational skills
  • Their education
  • Each of their employability
  • Their estates (assets)
  • Each litigant’s needs
  • Impact of property division in the divorce
  • Feasibility and desirability of a litigant with custody of children to work outside the home

The law does not favor any specific factor over any of the others. The court may exercise discretion in giving more or less weight to any of the factors, but failure to show consideration or account for all the statutory factors may be viewed on appeal as an abuse of judicial discretion.

The state Supreme Court in Oudheusden explained that while a trial court has wide discretion in spousal support decision making, it must apply the law correctly and make reasonable conclusions. The court emphasized that the recipient of alimony “is entitled to maintain the standard of living enjoyed during the marriage as closely as possible.” The judge must keep in mind the public policy behind spousal support as well as fairness.

Uniqueness of nonmodifiable, permanent alimony

The alimony award in this case was fairly uncommon in that its duration or amount could never be modified upon a significant change in the parties’ circumstances. Plus, it was a lifetime award with no termination date except upon the wife’s death, remarriage, cohabitation or entry into a civil union.

While the court has power to order periodic alimony that is both permanent and not modifiable, the combination is unusual. For example, it does not allow for a reduction in payments should the payor eventually retire or become incapacitated.

Based on statutory language, Connecticut courts “disfavor” alimony orders that do not allow for future modification should personal circumstances change significantly. Nonmodifiability is “an exception to the general rule of modifiability.”

Awards that are not permanent in duration (but are instead time limited or rehabilitative) are sometimes entered to incentivize the recipient to prepare to reenter the workforce and become self-supporting. So, a lifetime award may arguably damper any motivation for such a recipient.

The court said that it is “more critical still” that a trial judge evaluate all the required statutory factors if the spousal support order “is not only nonmodifiable, but also permanent.” Such awards are “strong medicine” and “extraordinary.”

In that spirit, the Connecticut Supreme Court concluded that the trial court could not have considered or did not adequately weigh the paying litigant’s potential for aging and associated health issues (such as the effects of his alcohol abuse) and their impact on his future earning capacity. The court found that the judge abused their discretion and could not “reasonably have concluded … that the [husband] would continue to earn … the same income for the rest of his life.”

Musings and takeaways

Many of the typical concerns present when a judge crafts an alimony award are different in a family of significant wealth. For example, future earning capacity of the paying spouse may not be relevant at all if investments, trust benefits or business interests will generate passive income to support the marital lifestyle after divorce and perpetually for each litigant. The Supreme Court has acknowledged that when financial support of a disadvantaged ex-spouse is not problematic, sustaining the marital standard of living can become the primary focus, especially if one spouse cared for children or managed the household, allowing the other to develop their career and generate wealth for the family. See Hornung v. Hornung, 323 Conn. 144 (2016).

Or a permanent alimony award may not be of concern when the estate of the paying litigant will always be sufficient to generate the alimony payments under any personal circumstance of an affluent payor. Entering a time-limited award to encourage a litigant to prepare to return to work may make no sense when cash flow will never be an issue.

Under these kinds of circumstances, an experienced family lawyer will provide information and guidance about what litigation stance to take – should the emphasis be on alimony, or would it make more sense to support both spouses through a logical division of marital property?