Gabriel v. Gabriel

• Decision Date: 15 September 2015
• Docket Number: No. 36348.,36348.
• Citation: 123 A.3d 453,159 Conn.App. 805
• Court: Connecticut Court of Appeals
• Parties: Richard P. GABRIEL v. Diana K. GABRIEL.

159 Conn.App. 805

123 A.3d 453

Richard P. GABRIEL

v.Diana K. GABRIEL.

No. 36348.

Appellate Court of Connecticut.

Argued May 21, 2015.

Decided Sept. 15, 2015.

Norman A. Roberts II, with whom, on the brief, was Anthony L. Cenatiempo, Westport, for the appellant (defendant).

Joseph T. O'Conner, for the appellee (plaintiff).

BEACH, MULLINS and BISHOP, Js.

Opinion

MULLINS, J.

The defendant, Diana K. Gabriel, appeals from the judgment of the trial court modifying the unallocated alimony and support order of the dissolution court, and denying her motion for contempt filed against the plaintiff, Richard P. Gabriel. On appeal, the defendant claims that the court improperly modified her alimony award and denied her motion for contempt. We reverse the judgment of the trial court.

The following facts inform our review. The plaintiff and the defendant were married on July 1, 1995, and three children were born of the marriage. On April 7, 2011, the court dissolved the parties' marriage. The court incorporated the parties' separation agreement into its judgment. The parties' separation agreement also incorporated a July 21, 2010 parenting plan, in which the parties agreed to share joint physical and legal custody of the children, with primary physical custody also shared. The agreement also provided for unallocated alimony and support from January 1, 2011, to December 31, 2015. The alimony was nonmodifiable by the defendant as to amount and duration. The plaintiff, however, had the right to seek a modification of alimony on the basis of a substantial change in circumstances, so long as those circumstances were not based on the defendant's cohabitation or an increase in the defendant's earnings up to $100,000.

On May 1, 2012, the parties entered into a postjudgment parenting plan because the defendant was relocating to California, and the plaintiff did not want the defendant to take the children with her. Pursuant to this plan, which the court accepted, both parties continued to share “joint legal and physical custody of the minor children,” but the children primarily would reside with the plaintiff in Connecticut. The parenting plan also granted the defendant liberal visitation, including either the children's February or April vacation and a substantial portion of their summer vacation. The parenting plan was contingent on the defendant moving to California and was void if she stayed in Connecticut. The parenting plan did not address the issue of child support, and the court did not raise that issue during the hearing on the parenting plan.

On June 28, 2012, the plaintiff filed a motion for modification of child support, asserting that “[t]he financial circumstances of the parties have changed as a result of the defendant's relocation. [The defendant] no longer has primary residential custody of the children and is no longer primarily responsible for their financial needs. The [plaintiff] now has custody and primary responsibility for all three minor children.” On October 5, 2012, without permission from the court, the plaintiff unilaterally decreased his payments to the defendant from $54,666 per month to $20,000 per month. In response, the defendant filed a motion for contempt, alleging that the plaintiff improperly had engaged in self-help by reducing his unallocated support payments in violation of the existing orders of the court.

On November 5, 2013, the court granted the plaintiff's postjudgment motion for modification of child support, finding that the parties had stipulated that there had been a substantial change in circumstances.¹ The court also found that the defendant's financial needs had been reduced significantly by her move to California and her cohabitation with a man who was paying a portion of her household expenses. Accordingly, the court reduced the plaintiff's alimony payments to $20,000 per month. On the basis of the plaintiff having assumed primary physical custody of the children, the court, citing General Statutes § 46b–224,² also found that the plaintiff was not in wilful contempt for unilaterally reducing his unallocated payments to the defendant. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly modified the unallocated award without first determining the child support portion of the original award. We conclude that there was error.

“The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts.... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.... 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.” (Citations omitted; internal quotation marks omitted.) Nation–Bailey v. Bailey, 144 Conn.App. 319, 330, 74 A.3d 433 (2013), aff'd, 316 Conn. 182, 112 A.3d 144 (2015).

Additionally, “[i]t is well established that a separation agreement, incorporated by reference into a judgment of dissolution, is a contract between the separating parties.... Accordingly, our review of a trial court's interpretation of a separation agreement is guided by the general principles governing the construction of contracts.... 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.” (Internal quotation marks omitted.) Sagalyn v. Pederson, 140 Conn.App. 792, 795, 60 A.3d 367, cert. denied, 308 Conn. 930, 64 A.3d 119 (2013).

In this case, the parties entered into a separation agreement that was incorporated into the court's judgment dissolving their marriage. Article II, § 2.1 of the agreement provided in relevant part:

“2.1 Commencing January 1, 2011, the [plaintiff] shall pay, during his lifetime, to the [defendant], until her death or remarriage or December 31, 2013, whichever shall first occur, for her support monthly unallocated alimony and support as follows:

“The [plaintiff's] monthly alimony obligation shall be 1/12th of the following amounts

“1) 50 [percent] of earned annual cash income up to $400,000 ($400,000 x .50 = $200,000/12 = $16,666.66 max) plus

2) 45 [percent] of earned annual cash income between $400,001 and $800,000 ($400,000 x 45 [percent] = $180,000/12 = $15,000 max) plus

3) 40 [percent] of earned annual cash income between $800,000 and $1,500,000 ($700,000 x .40 = $280,000/12 = $23,333 max).

“The maximum monthly alimony obligation shall be $54,999, or $660,000 per year. The [defendant] shall have no claim to the [plaintiff's] earnings in excess of $1,500,000.

“Commencing January 1, 2014, the [plaintiff] shall pay, during his lifetime, to the [defendant], until her death or remarriage or December 31, 2015, whichever shall first occur, for her support monthly unallocated alimony and support as follows:

“The [plaintiff's] monthly unallocated alimony and support obligation shall be 1/12th of the following amounts

“1) 50 [percent] of earned annual cash income up to $400,000 ($400,000 x .50 = $200,000/12 = $16,666.66 max) plus

2) 45 [percent] of earned annual cash income between $400,001 and $800,000 ($400,000 x 45 [percent] = $180,000/12 = $15,000 max) plus

3) 40 [percent] of earned annual cash income between $800,000 and $1,250,000 ($450,000 x .40 = $180,000/12 = $15,000 max).

“The maximum monthly unallocated alimony and support obligation shall be $46,666.66 monthly, or $560,000 per year. The [defendant] shall have no claim to the [plaintiff's] earnings in excess of $1,250,000....

“The amount of alimony shall be non-modificable as to both amount and duration by the [defendant], for any reason.

“The [plaintiff] retains his right to seek a modification of alimony based upon a substantial change of circumstances. The foregoing notwithstanding, for so long as he is paying alimony in accordance with the above percentages, the [plaintiff] waives the right to seek to modify the [defendant's] alimony based upon her cohabitation. He further waives the right to seek a modification of this alimony obligation based solely upon the [defendant's] earnings, so long as her earnings do not exceed $100,000 per annum.”³

Accordingly, the terms of the agreement, as it relates to the unallocated alimony and support payments, are unambiguous. The agreement clearly states that the unallocated alimony and support payments are “for her support” and are nonmodifiable by the defendant as to both amount and duration, but are modifiable by the plaintiff upon a substantial change in circumstances, not including the defendant's cohabitation or her earnings up to $100,000. Indeed, the plaintiff concedes that the agreement clearly prohibits him from moving to modify the agreement on the basis of the defendant's cohabitation. He argues, however, that the court was free to consider the defendant's cohabitation in rendering its new orders. We disagree.

The plaintiff in this case filed a postjudgment motion for modification, requesting “an order from the court for a modification of his child support payments due to a substantial change of circumstances.” (Emphasis added.) The plaintiff claimed that the change in the children's residence affected the parties' financial circumstances. The court, after taking into consideration that the defendant now was cohabitating with a man who was paying a substantial portion of her household expenses, modified the plaintiff's alimony obligation to the $20,000 monthly amount to which the plaintiff unilaterally had reduced...