Keller v. Keller
It is axiomatic that an award of alimony and support must be based on net income after taxes, not gross income. The plaintiff, Beth Keller, and the defendant, Richard Keller, were married in 1992 and have three minor children. The plaintiff filed this dissolution action and a motion for alimony and support pendente lite. Evidence at the hearing indicated that the 46-year-old plaintiff, a licensed registered dietician, was last employed in 1996 in public relations. She has been a full-time mother and homemaker. The 46-year-old defendant is a lawyer who founded a hedge fund in 2006 and earned approximately $1.9 million in 2007. After the economic downturn in 2008, he began liquidating the fund. It closed in 2010. He has had no income since 2008 and has been paying living expenses by selling liquid assets and borrowing money. The parties' joint 2009 federal income tax return showed a loss of approximately $120,000. The trial court found that the plaintiff had a current earning capacity of approximately $3,000 per month and that the defendant had a current earning capacity of $25,000 a month. The court ordered the defendant to pay $9000 per month to the plaintiff as unallocated alimony and child support plus the monthly mortgage payments on the marital residence, the plaintiff's car loan payments and family's health and dental insurance and certain unreimbursed expenses. The defendant appealed raising multiple claims. The Appellate Court reversed the judgment agreeing with the defendant's claim that the court's orders constituted an abuse of discretion because they were based upon the defendant's gross, rather than net income. It was clear from the record that the court considered the defendant's imputed $25,000 per month income to be gross income. It also was clear that, at no time, did the court attempt to calculate, or ask the parties to calculate, what the available net income after taxes would be on such a gross income. The matter was remanded for further proceedings.