Issler v. Issler

• Decision Date: 25 August 1998
• Docket Number: No. 16463,16463
• Citation: 50 Conn.App. 58,716 A.2d 938
• Court: Connecticut Court of Appeals
• Parties: Susan ISSLER v. James ISSLER.

Page 938

716 A.2d 938

50 Conn.App. 58

Susan ISSLER v. James ISSLER.

No. 16463.

Appellate Court of Connecticut.

Argued Dec. 8, 1997.

Decided Aug. 25, 1998.

Steven D. Ecker, with whom, on the brief, were Howard A. Jacobs, Shirley V. Hoogstra, and Alinor C. Sterling, New Haven, for appellant (defendant).

Kathleen A. Hogan, with whom, on the brief, was Arnold H. Rutkin, Westport, for appellee (plaintiff).

Before FOTI, LANDAU and DALY, JJ.

LANDAU, Judge.

The defendant, James Issler, appeals from the trial court's judgment of contempt for failure to comply with the terms of a marriage dissolution agreement and award of attorney's fees to the plaintiff, Susan Issler, for the appeal. As to the judgment of contempt, the defendant claims that the trial court improperly (1) construed the dissolution agreement to require calculation of alimony based on his total income rather than on only income received as salary, (2) found that the defendant's actions were in wilful contempt of the dissolution agreement, (3) arrived at its conclusions using a preponderance of the evidence standard and (4) awarded $10,000 in attorney's fees to the plaintiff. As to the $12,000 award of attorney's fees for the appeal, the defendant claims that the award was improper because the trial court (1) failed to consider factors mandated by General Statutes § 46b-62, (2) applied an improper legal standard and (3) abused its discretion. We affirm the judgment of the trial court.

The trial court dissolved the marriage of the parties in July, 1995. Subsequently, a dispute arose as to whether the defendant was to make alimony payments to the plaintiff based on income that he earned in his business as salary as opposed to additional income he received from yearly profits as the president of his company (profit income). The plaintiff filed a motion for contempt alleging alimony arrearage based on the profit income and for attorney's fees, which was granted by the trial court. The trial court determined that the defendant owed the plaintiff an alimony arrearage of $90,000 based on the profit income, and that he owed her $10,000 in attorney's fees. ¹ This appeal followed.

Following the trial court's granting of the plaintiff's motion for attorney's fees for the appeal, the defendant amended his appeal to challenge that award.

I

The defendant first challenges the trial court's judgment of contempt. The following additional facts are necessary to our resolution of this claim. The dissolution agreement provided, in relevant part, the following alimony schedule:

"a. The husband shall pay to the wife alimony in an amount equal to 33 1/3% of his gross earnings up to $750,000.00 gross in any calendar year in which he has an obligation to pay alimony.

"b. The next $100,000.00 of gross earnings of the husband's shall not be subject to increase his alimony.

"c. The husband shall pay to the wife as additional alimony 22% of the husband's gross earnings between $850,001 and $1,250,000.

"d. The husband shall pay to the wife as additional alimony 15% of the husband's gross earnings between $1,250,001.00 and $1,500,000.00.

"e. The husband shall pay to the wife as additional alimony 15% of the husband's gross earnings above $1,500,000.00.

"Gross earnings shall be defined as all income earned by the husband, wherever he may be employed and/or self-employed, after usual and customary business expenses and deductions if self-employed, in the form of salary, incentive payments, bonus, deferred compensation, present value of stock options, stock dividends, issued as compensation, or any other form of compensation direct or deferred including severance pay upon termination....

"2.5 While the husband is employed by H.H. Brown Shoe Company, the Husband's gross earnings will be determined by H.H. Brown's independent certified public accountant's letter which computes the compensation of James Issler.

"The Husband's present compensation agreement is annexed hereto as Exhibit A. In the event that his compensation agreement changes, he shall within thirty (30) days provide said new agreement(s) to the Wife.

"The alimony shall be based only on the Husband's gross earnings from H.H. Brown or his gross earnings wherever employed or self/employed reduced by customary business expenses and deductions and shall not include any passive income, unless the Husband is unemployed or earning less than $600,000.00 per year."

Exhibit A provided, inter alia, that "[James Issler's] compensation, effective January 1, 1995, will consist of an annual salary of $350,000.00, paid weekly, plus an incentive plan based on 5% of the combined annual adjusted consolidated profits, before income taxes, of the H.H. Brown Shoe Group."

"Although ... plenary review of civil contempt orders extends to some issues that are not truly jurisdictional, its emphasis on fundamental rights underscores the proposition that the grounds for any appeal from a contempt order are more restricted than would be the case in an ordinary plenary appeal from a civil judgment." (Internal quotation marks omitted.) Wilson v. Wilson, 38 Conn.App. 263, 272, 661 A.2d 621 (1995). Appellate review of a finding of civil contempt "is technically limited to questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt.... This limitation originates because by its very nature the court's contempt power ... must be balanced against the contemnor's fundamental rights and, for this reason, there exists the present mechanism for the eventual review of errors which allegedly infringe on these rights.... We have found a civil contempt to be improper or erroneous because ... the findings on which it was based were ambiguous and irreconcilable ... the penalties imposed were criminal rather than civil in nature ... and the contemnor, through no fault of his own, was unable to obey the court's order." ² (Internal quotation marks omitted.) Id., at 271-72, 661 A.2d 621.

A

The defendant claims that the trial court misconstrued the dissolution agreement to require calculation of alimony based on both salary and profit income rather than on salary alone. We disagree.

The trial court found the language of the dissolution agreement to be clear and unambiguous. "The definition of gross earnings does not lack clarity or lend itself to more than one interpretation. The gross earnings for the year include the incentive payments for that year." Given the plain language of the dissolution agreement, we conclude that gross earnings were clearly defined to include profits received by the defendant through his compensation package. "Where the language of the [dissolution agreement] is clear and unambiguous, the [agreement] is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity and words do not become ambiguous simply because lawyers or laymen contend for different meanings." (Internal quotation marks omitted.). Legg v. Legg, 44 Conn.App. 303, 306, 688 A.2d 1354 (1997). ³ The trial court properly construed the term gross earnings as defined in the parties' voluntary dissolution agreement.

B

The defendant claims that the trial court improperly found him in "wilful contempt of court for failure to pay the alimony as ordered by the judgment." He correctly asserts that a finding of noncompliance, alone, will not support a judgment of contempt. See, e.g., Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998). He claims that his interpretation of the alimony agreement was reasonable and that the trial court's order was not clear and unequivocal. As a result, he argues that the court was not justified in finding him in wilful contempt. We are unpersuaded.

In support of this argument, the defendant asserts that the definition of adjusted gross income was ambiguous and, therefore, could not support a finding of wilful contempt. He argues that the facts in this case are sufficiently similar to Blaydes v. Blaydes, 187 Conn. 464, 467, 446 A.2d 825 (1982), and Baldwin v. Miles, 58 Conn. 496, 501-502, 20 A. 618 (1890). We disagree.

The defendant fails to recognize facts that distinguish the present case from Baldwin and Blaydes. In Baldwin v. Miles, supra, 58 Conn. at 500-02, 20 A. 618, the defendants were subject to an injunction that stated that they could not operate a phosphate manure business between July 1 and September 15, nor could they operate said business so as to produce noxious and offensive odors when the wind was blowing from east to west. The defendants operated a nonphosphate manure business during that period, which produced noxious and offensive odors, and they were subsequently found in contempt for violating the court order. On appeal, our Supreme Court held that the court order applied to the phosphate business only, and, therefore, while the defendants' business may have produced noxious and offensive odors while the wind was blowing east to west, they did not violate the injunction. In the alternative, the court held that, if the order did not apply only to the phosphate business, it was vague and indefinite and could not support a judgment of contempt. The court reasoned that an order "should be clear and certain ... so that the party upon whom it is served may readily know what he can or cannot do thereunder...." Id., at 502, 20 A. 618.

In Blaydes v. Blaydes, supra, 187 Conn. 464, 446 A.2d 825, the defendant was found in contempt for failure to comply with an alimony order. The alimony order provided that the term "adjusted gross income" would have the same meaning as it had for federal income tax purposes. The applicable federal tax provisions, however, were modified one year following the judgment of the court. The premodification provision defined the term "adjusted gross income" as a...