Pite v. Pite

• Decision Date: 29 May 2012
• Docket Number: No. 33421.,33421.
• Citation: 135 Conn.App. 819,43 A.3d 229
• Court: Connecticut Court of Appeals
• Parties: Faith Whitehead PITE v. William J. PITE.

135 Conn.App. 819

43 A.3d 229

Faith Whitehead PITE

v.William J. PITE.

No. 33421.

Appellate Court of Connecticut.

Argued April 9, 2012.

Decided May 29, 2012.

William F. Gallagher, New Haven, with whom, on the brief, was Hugh D. Hughes, for the appellant (defendant).

Daniel J. Krisch, Hartford, with whom were Jean L. Welty, New Haven, and, on the brief, Karen L. Dowd, Hartford, for the appellee (plaintiff).

LAVINE, BEAR and SHELDON, Js.

BEAR, J.

The defendant, William J. Pite, appeals from the judgment of the trial court granting the motion to modify the duration of periodic alimony filed by the plaintiff, Faith Whitehead Pite, and denying the motion to modify and terminate child support filed by the defendant. On appeal, the defendant claims that the court erred in modifying the time limited periodic alimony and in declining to modify and terminate the defendant's child support obligation in light of the defendant's payment of their daughter's private school tuition. We affirm the judgment of the trial court.

The original dissolution judgment, rendered on February 20, 2001, provided, in relevant part, in paragraph four, that the “defendant shall pay to the plaintiff periodic alimony in the amount of $1500 weekly. Alimony shall terminate upon the death of either party, remarriage or cohabitation by the plaintiff, or the plaintiff's sixtieth birthday, whichever shall occur first. Alimony shall terminate on the plaintiff's sixtieth birthday because the plaintiff will then be able to support herself through the interest awarded to her by this judgment in the defendant's profit-sharing plan.” Specifically as to the defendant's profit sharing plan, the judgment also provided, in paragraph ten: “The plaintiff is awarded an interest in the amount of $1,887,736 in the profit-sharing plan held by the defendant. This figure represents one-half of the current value of the profit-sharing plan after deducting the value of the plan at the time of the marriage ($905,371).” On March 22, 2001, the court modified paragraph ten of the judgment, explaining: “[I]t was my intent ... that [the plaintiff] be awarded one-half of the current value of the profit sharing plan after deducting the value of the plan at the time of the marriage.... I incorrectly used a valuation of that profit sharing plan as of December 22, 2000, and neglected to use the value that was given to me as of January 5, 2001. So, I am going to correct my decision to remedy that error. And given the volatility in the market, and it's my understanding that the profit sharing plan is primarily stocks and bonds, if not entirely, I believe it appropriate to enter a percentage rather than a fixed dollar amount at this time. So, I am going to award the plaintiff one-half of the current value of the profit sharing plan after deducting the value of the plan at the time of the marriage, which I find to be $905,371....”

After the defendant filed an appeal from the court's judgment of dissolution, he and the plaintiff entered into an agreement to modify the dissolution judgment. The stipulated agreement provided, in relevant part, that paragraph ten would be modified as follows: “The [p]laintiff is awarded one-half of the [d]efendant's interest in his profit-sharing plan, less $575,000. The ‘one-half’ valuation shall be made by taking the value of the [d]efendant's interest as of the date this modification is approved, and subtracting therefrom the value of the defendant's interest in the plan at the time of the marriage, which was $905,371. After that one-half figure is determined, the sum of $575,000 must be subtracted. The remaining figure shall represent the [p]laintiff's share.” The court approved the stipulation on August 13, 2002, thereby modifying the dissolution judgment. The parties also agreed to the withdrawal of the defendant's appeal.

On March 4, 2010, approximately one month before her sixtieth birthday, the plaintiff filed a motion to modify alimony, postjudgment. She claimed that the “market conditions resulted in a substantial reduction in the value of the defendant's retirement assets ... [such that she now was] unable to support herself through the interest awarded to her in the defendant's profit sharing plan, which is substantially changed from the situation anticipated by the court in making the alimony award.” The defendant objected on the ground that the judgment ordered periodic alimony that would terminate on the plaintiff's sixtieth birthday. The defendant also filed a motion seeking, in part, to modify and terminate child support on the ground that the parties' daughter was attending private school and that the defendant was paying her tuition.

On May 3, 2011, the court issued the following orders: “[1] The [c]ourt finds a substantial change in circumstances due to Social Security payments [of $249 weekly] being made to the [plaintiff] for the benefit of the child based on [the defendant's] Social Security. In addition ... the market fluctuations and a reduction in [the] [p]laintiff's share of [the] [d]efendant's retirement assets reduced the income she would have at age [sixty] anticipated by the original [m]emorandum of [d]ecision.

“[2] Child support shall be modified to $241 per week retroactive to [May 16, 2009] (date of service of the modification).

“[3] Alimony shall be modified downward to $1095 per week retroactive to [April 24, 2010] with no limitation to duration. Alimony is modifiable by either party. The modification of alimony is based on the income and assets of both parties and the fact that [the] [p]laintiff has not become employed full time as anticipated by the original decision.” This appeal followed.

I

The defendant first claims that the court erred “in granting the [plaintiff's] motion for modification of alimony where the effect of the court's order was to transform limited duration alimony into lifetime alimony.” He argues that this case is distinguishable from Scoville v. Scoville, 179 Conn. 277, 426 A.2d 271 (1979) (limited duration alimony modifiable unless decree specifically provides for nonmodifiability), or, in the alternative, that Scoville should be overruled. He also argues that even if Scoville applies, the court in this case abused its discretion in granting the plaintiff's motion to modify alimony. We conclude that this case is controlled by Scoville, that we have no authority to overrule Supreme Court precedent and that the court did not abuse its discretion in granting the plaintiff's motion to modify alimony.

As a preliminary matter, we set forth our standard of review. “An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented.... 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.... Trial courts have broad discretion in deciding motions for modification.... Modification of alimony, after the date of a dissolution judgment, is governed by General Statutes § 46b–86.” ¹ (Citation omitted; internal quotation marks omitted.) Schwarz v. Schwarz, 124 Conn.App. 472, 476, 5 A.3d 548, cert. denied, 299 Conn. 909, 10 A.3d 525 (2010).

Because we are concerned, in this part of our analysis, with whether the alimony provision in the dissolution judgment was nonmodifiable, we employ the following standard. “The construction of a judgment is a question of law for the court.... As a general rule, judgments are to be construed in the same fashion as other written instruments.... The determinative factor is the intention of the court as gathered from all parts of the judgment.... The judgment should admit of a consistent construction as a whole.... It is true that provisions for nonmodification are generally not favored and are upheld only if they are clear and unambiguous. If an award is intended to be nonmodifiable, it must contain express language to that effect.... There is no given set of words that must be used to preclude modification; an order is nonmodifiable if the decree distinctly and unambiguously expresses that it is.... In making this determination, we look only at the dissolution decree itself.” (Citations omitted; internal quotation marks omitted.) Sheehan v. Balasic, 46 Conn.App. 327, 332, 699 A.2d 1036 (1997), appeal dismissed, 245 Conn. 148, 710 A.2d 770 (1998).

Section 46b–86 (a) “suggests a legislative preference favoring the modifiability of orders for periodic alimony ... [and requires that] the decree itself must preclude modification for this relief to be unavailable.... If an order for periodic alimony is meant to be nonmodifiable, the decree must contain language to that effect.... Such a preclusion of modification must be clear and unambiguous.... If a provision purportedly precluding modification is ambiguous, the order will be held to be modifiable.... In determining whether the alimony award is modifiable or nonmodifiable, only the dissolution decree itself may be used.” (Citations omitted; internal quotation marks omitted.) Rau v. Rau, 37 Conn.App. 209, 211–12, 655 A.2d 800 (1995).

The defendant first argues that this case is not controlled by Scoville. In Scoville, the trial court had awarded alimony in the dissolution judgment in the amount of $100 per week for three years. Scoville v. Scoville, supra, 179 Conn. at 277, 426 A.2d 271. The judgment provided that “[a]t the end of the three year period, the payment order of alimony shall terminate.” (Internal quotation marks omitted.) Id. The plaintiff thereafter filed a motion for modification, which the court denied on the ground that the award was nonmodifiable, being of fixed duration. Id., at 278, 426 A.2d 271. On appeal, the Supreme Court explained that the alimony order was an ambiguous order and that it had treated similar orders...