Marshall v. Marshall, 100620 CTCA, AC 41216

Docket Nº:AC 41216
Opinion Judge:ALVORD, J.
Party Name:WILLIAM MARSHALL, JR. v. KIMBERLY L. MARSHALL
Attorney:George J. Markley, for the appellant-cross appellee (defendant). Alexander J. Cuda, for the appellee-cross appel- lant (plaintiff).
Judge Panel:Alvord, Elgo and Pellegrino, Js.
Case Date:October 06, 2020
Court:Appellate Court of Connecticut
 
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WILLIAM MARSHALL, JR.

v.

KIMBERLY L. MARSHALL

No. AC 41216

Court of Appeals of Connecticut

October 6, 2020

Argued May 15, 2020

Procedural History

Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Fairfield and tried to the court, Alander, J.; judgment dissolving the marriage and granting certain other relief; thereafter, the court, Klatt, J., denied the defendant's motion for contempt and granted the plain- tiff's motion to modify alimony, and the defendant appealed to this court, Beach, Sheldon and Norcott, Js., which reversed in part the trial court's judgment and remanded the case for further proceedings; subsequently, the court, Hon. Gerald I. Adelman, judge trial referee, granted the plaintiff's motion to modify alimony and the defendant's motion for contempt in part, and the defendant appealed and the plaintiff cross appealed to this court. Affirmed.

George J. Markley, for the appellant-cross appellee (defendant).

Alexander J. Cuda, for the appellee-cross appel- lant (plaintiff).

Alvord, Elgo and Pellegrino, Js.

OPINION

ALVORD, J.

The defendant, Kimberly L. Marshall, appeals from the rulings of the trial court on her motion for contempt and the motion of the plaintiff, William Marshall, Jr., to modify his alimony obligation. On appeal, the defendant claims that the court improperly (1) exceeded the scope of this court's remand orders in her prior appeal, 1 (2) failed to abide by the law of the case as established in the decisions of both the trial court and this court in her prior appeal, (3) allowed the plaintiff to claim that his alimony obligation should be determined using reasonable compensation when he had not made that argument at any time prior to the hearing on remand, (4) used reasonable compensation as a basis for calculating the plaintiff's alimony obligation when the parties' separation agreement (agreement) did not provide for that method, and (5) retroactively modified the plaintiff's alimony obligation for a period of nearly four years prior to the plaintiff's motion to modify. We affirm the judgment of the trial court.2

The following facts, as set forth by this court in the defendant's prior appeal; see Marshall v. Marshall, 151 Conn.App. 638, 640, 97 A.3d 1 (2014) (Marshall I); and procedural history are relevant to our resolution of this appeal. ‘‘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 [the agreement] between the parties, which the court found to be fair and equitable.'' Id.

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.''3 Paragraph 4.2 of the agreement also provides: ‘‘The $192, 000 pre-tax 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). 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 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 pre-tax 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 ‘pre-tax income from employment.' ''

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 immediately notify the [defendant] of such change and advise her of the amount of increase or decrease. The change in the [defendant's] entitlement of the forty (40%) percent or thirty-seven and one-half (37 1/2 %) 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.''

Paragraph 4.6 of the agreement states: ‘‘Either party shall have the right to move for modification of the provisions of paragraphs 4.1, 4.2 and 4.3 in the event there is a substantial change in the nature of the [plaintiff's] compensation and/or the [plaintiff] is no longer employed by Artisans Home Builders, Inc. and/or no longer has an ownership interest in Artisans Home Builders, Inc.''

The plaintiff paid alimony of $76, 010 in 2008 and $17, 200 in 2009. In 2010 and 2011, the plaintiff paid no alimony. ‘‘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 [Klatt, J.] 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.'' Marshall I, supra, 151 Conn.App. 640.

‘‘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.'' Id., 643-44.

The defendant then filed an appeal with this court, claiming, inter alia, that the trial court erred in calculating the amount of alimony owed by the plaintiff under the agreement. Id., 639. The defendant's specific claim in Marshall I was that the court erred in calculating the plaintiff's alimony obligation on the basis of his W-2 income only, without considering the distributions he received from Artisans. Id., 644-45. This court concluded that the...

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