Marshall v. Marshall

• Decision Date: 22 July 2014
• Docket Number: No. 34674.,34674.
• Citation: 151 Conn.App. 638,97 A.3d 1
• Court: Connecticut Court of Appeals
• Parties: William MARSHALL, Jr. v. Kimberly MARSHALL.

151 Conn.App. 638
97 A.3d 1

William MARSHALL, Jr.
v.
Kimberly MARSHALL.

No. 34674.

Appellate Court of Connecticut.

Argued Jan. 14, 2014.
Decided July 22, 2014.

[97 A.3d 5]

George J. Markley, Fairfield, for the appellant (defendant).

Karen L. Dowd, with whom were Brendon P. Levesque, Hartford, and, on the brief, Melissa J. Needle, for the appellee (plaintiff).

BEACH, SHELDON and NORCOTT, Js.

BEACH, J.

The defendant, Kimberly Marshall, appeals from the rulings of the trial court in favor of the plaintiff, William Marshall, Jr., on various postjudgment motions. The defendant claims that the court erred in (1) calculating the amount of alimony owed by the plaintiff under the parties' separation agreement, (2) denying her motion for contempt, (3) failing to award statutory interest and (4) granting the plaintiff's motion to modify alimony. We reverse, in part, the judgment of the trial court.

The following undisputed facts and procedural history are relevant. The parties were married in 1981. Four children were born of the marriage; only one was a minor at the time of dissolution. In 2006, the plaintiff filed a complaint seeking dissolution of his marriage to the defendant. In May, 2007, the court rendered judgment of dissolution and incorporated by reference a separation agreement between the parties, which the court found to be fair and equitable.

In August, 2011, the plaintiff filed a postjudgment motion to modify alimony on the ground that the agreement provided that either party had the right to move for modification of alimony on the basis of a substantial change in circumstances and that there had been such a change. In September, 2011, the defendant filed a postjudgment motion for contempt on the ground that the plaintiff had failed to pay unallocated alimony and child support as provided in the agreement. In that motion, the defendant also sought counsel fees and statutory interest. In March, 2012, after a hearing on the motions, the court denied the defendant's motion for contempt, declined to award the defendant attorney's fees or statutory interest, and granted the plaintiff's motion to modify. This appeal followed.

I

The defendant claims that the court erred in calculating the amount of alimony owed by the plaintiff under the agreement. We agree and remand the case to the trial court for further proceedings on this issue.

In domestic relations cases, “[a] judgment rendered in accordance with ... a stipulation of the parties is to be regarded and construed as a contract.... Accordingly, [o]ur resolution of the [plaintiff's] claim is guided by the general principles governing the construction of contracts. A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.... [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and ... the language used must be accorded its common, natural and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract....

[97 A.3d 6]

“Where the language of the contract is clear and unambiguous, the contract 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.... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms.... [T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.... [I]n construing contracts, we give effect to all the language included therein, as the law of contract interpretation ... militates against interpreting a contract in a way that renders a provision superfluous.... If a contract is unambiguous within its four corners, intent of the parties is a question of law requiring plenary review.... When the language of a contract is ambiguous, the determination of the parties' intent is a question of fact, and the trial court's interpretation is subject to reversal on appeal only if it is clearly erroneous.... To identify and to apply the appropriate standard of review, we must, therefore, initially determine whether the agreement ... was unambiguous.” (Citation omitted; internal quotation marks omitted.) McKeon v. Lennon, 147 Conn.App. 366, 372–73, 83 A.3d 639 (2013).

Article 4 of the agreement is entitled “alimony and child support.” Paragraph 4.1 provides: “For purposes of this Article Four, ‘pre-tax income from employment’ shall only include salary and cash bonus received by the [plaintiff] in cash (or check) from employment before any deductions, including, but not necessarily limited to federal, state or municipal income taxes, social security, Medicare, insurance of any kind, or payments by the [plaintiff] to any defined contribution plan, e.g. a 401(k) plan. The foregoing to the contrary notwithstanding, specifically excluded from this definition of ‘pre-tax income from employment’ shall be ... (v) Subchapter S distributions received by the [plaintiff] by virtue of his forty (40%) percent interest in Artisans Home Builders, Inc. or other like distributions from any company in which the [plaintiff] acquires an ownership interest....”

Paragraph 4.2 of the agreement provides that, commencing June 1, 2007, and until the death of either party, the defendant's remarriage or cohabitation, or sixty months, whichever shall first occur, “the [plaintiff] shall pay unallocated alimony and child support in cash to the [defendant] as follows: an amount equal to forty (40%) percent of the [plaintiff's] pre-tax income from employment, which income the parties stipulate to be $192,000 per year.” The parties stipulated in paragraph 4.2 that the plaintiff's “pre-tax income from employment” equaled $192,000 per year. Paragraph 4.2 of the agreement also explains the derivation of the $192,000 figure: “The $192,000 pretax income from employment is based upon the accepted opinion of a joint appraisal conducted by Meyers, Harrison & Pia as to the fair market value of the [plaintiff's] 40% interest in Artisans, Maker of Fine Homes, Inc. (Artisans). ¹ Said appraisal concluded that reasonable and appropriate compensation levels of the [plaintiff] for the year ended in December 1, 2005 is $175,000. In addition to the $175,000, the parties agree to include, as ‘pre-tax income’ monies paid directly by Artisans for the benefit of the [plaintiff]. Currently, this direct payment

[97 A.3d 7]

benefit consists of the payment of medical insurance premium in the approximate annual amount of $17,000. Accordingly, for purposes of modification, the parties have ascribed a base salary of $175,000 plus additional direct benefits of $17,000 for a total pretax income of $192,000. Specifically excluded from this pretax income and not to be considered in a modification hearing is the return on investment the [plaintiff] receives as an equity holder in the business. By way of example, in 2005, the [plaintiff's] income from wages and salaries (W–2) and S Corporation income (K–1) was $681,982. Notwithstanding, because the earnings of Artisans (i.e. in sums in excess of $192,000) were used to value Artisans as an asset, monies the [plaintiff] receives in excess of $192,000 shall not be considered a ‘pretax income from employment.’ ” (Footnote added.)

Paragraph 4.4 provides: “If the [plaintiff's] base salary and direct benefits from Artisans Home Builders, Inc., or a subsequent employer, exceeds or is less than $192,000 ... [the plaintiff shall notify the defendant]. The change in the [defendant's] entitlement of the forty (40%) percent ... whether more or less, shall be effective on the first day of the month following the [plaintiff's] receipt of a salary increase or of a salary decrease.” ²

In its March, 2012 decision, the court found that the plaintiff paid alimony in accordance with the agreement in 2007 and 2008, that he reduced alimony payments to $3200 for the first six months of 2009, and that he stopped all alimony payments as of July 1, 2009. The court noted that the plaintiff testified that he was an owner of Artisans, a company that built custom homes, and that by 2009, Artisans had suffered a significant decline in business. The court found that the plaintiff's income was $192,000 in 2007, that it had been reduced to $72,000 by 2009, and remained at approximately $72,000 for 2010 and 2011.

The court determined that paragraph 4.4 of the agreement was self-executing and provided a straightforward formula for calculating unallocated alimony and child support obligation that was based on certain increases or decreases in income. The court concluded that the agreement did not provide for the complete cessation of alimony payments in the event of a change in income; rather, the plaintiff should have reduced his alimony payments, in accordance with paragraph 4.4, to 40 percent of his W–2 income. The court found that the plaintiff's yearly W–2 salary in 2009 was $72,000 and concluded that he owed $2400 per month for that year. The court found that the plaintiff owed alimony in the following amounts: $14,400 for the year 2009 (six months @ $2400/month); $28,800 for the year 2010 (twelve months @ $2400/month); $19,200 for the year 2011 (eight months @ $2400/month); for a total of $62,400 to be paid in monthly installments of $2400 until paid in full. The court modified the plaintiff's alimony payments pursuant to paragraph 4.6 of the agreement to $1 per year retroactive to August 31, 2011.

II

The defendant argues that the court erred in its determination of what constituted income under paragraph 4.2. She contends that the court calculated the amount of alimony due by taking 40 percent of the plaintiff's W–2 income only and “completely ignored the...