Scoville v. Scoville

• Decision Date: 27 November 1979
• Citation: 426 A.2d 271,179 Conn. 277
• Court: Connecticut Supreme Court
• Parties: Diane A. SCOVILLE v. Homer G. SCOVILLE.

Page 271

426 A.2d 271

179 Conn. 277

Diane A. SCOVILLE v. Homer G. SCOVILLE.

Supreme Court of Connecticut.

Argued Oct. 4, 1979.

Decided Nov. 27, 1979.

Wesley W. Horton, Hartford, for appellant (plaintiff).

Gary O. Olson, Meriden, for appellee (defendant).

Before LOISELLE, BOGDANSKI, SPEZIALE, PETERS and HEALEY, JJ.

SPEZIALE, Associate Justice.

The marriage of the plaintiff, Diane A. Scoville, and the defendant, Homer G. Scoville, was dissolved on July 12, 1976 (Hon. John R. Thim, state referee). The judgment included, inter alia, the following order regarding alimony: "The defendant shall pay the plaintiff alimony of $100.00 per week for a period of three years from the date of this memorandum. At the end of the three year period, the payment order of alimony shall terminate."

The sole issue on this appeal is whether that alimony order is modifiable.

In September of 1977, the plaintiff entered law school as a full-time student. On October 24, 1978, she filed a motion for modification of alimony seeking to have the duration of the alimony payments extended until she passes the bar examination. The plaintiff's motion for modification was denied by the court. The issue of whether there was a proper showing of a substantial change in circumstances to justify modification was not reached, the trial court having concluded that any change in circumstances was not relevant "since the alimony award ... is one for a specific period of time and as such is an award of alimony in gross and not modifiable." The plaintiff has appealed to this court from the denial of her motion for modification of alimony and has raised only the issue of whether the original alimony order is modifiable. ¹ Periodic alimony is indefinite as to amount or duration. Section 46b-86 of the General Statutes provides in relevant part: "(a) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party." (Emphasis added.) This statute authorizes the modification of periodic alimony for the future; Sanchione v. Sanchione, 173 Conn. 397, 404, 378 A.2d 522 (1977); it also suggests a legislative preference favoring the modifiability of orders for periodic alimony. According to the statutory language, the decree itself must preclude modification for this relief to be unavailable.

Lump sum alimony, unlike periodic alimony, is a final judgment which cannot be modified even should there be a substantial change in circumstances. Sanchione v. Sanchione, supra, 404, n.2, 378 A.2d 522; Viglione v. Viglione, 171 Conn. 213, 215, 368 A.2d 202 (1976). General Statutes § 46b-86. This is true even if the lump sum alimony is a specific amount of money payable in installments. Viglione v. Viglione, supra, 216, 368 A.2d 202. See also Clark, The Law of Domestic Relations § 14.12, pp. 483-84 (discussion of the Internal Revenue Code distinction between periodic and lump sum alimony); annot., 71 A.L.R. 723, 730-34; 127 A.L.R. 735, 743-44.

We are confronted here with an ambiguous order regarding alimony. This court has treated as modifiable alimony orders with similar ambiguities. Easton v. Easton, 172 Conn. 451, 374 A.2d 1090 (1977); Lasprogato v. Lasprogato, 127 Conn. 510, 18 A.2d 353 (1941). We conclude that in that part of the instant order stating "(a)t the end of the three year period, the payment order of alimony shall terminate," it is implicit that during that period there be no intervening material change in circumstances warranting modification. Even the defendant in his brief states that he does not contend that the original alimony order is nonmodifiable in all respects; his position is that an extension of alimony beyond the three-year period is what is barred. ² Our interpretation does not render superfluous the second sentence of the alimony order. Rather, we view that sentence as placing a time limitation on the alimony payments should no intervening material change in circumstances occur prior thereto. The trial court should have reached and decided the issue of whether there was a substantial change in circumstances justifying modification of the alimony order.

There is error, the judgment is set aside and the case is remanded to be proceeded with according to law.

In this opinion LOISELLE, BOGDANSKI and PETERS, JJ., concurred.

HEALEY, Associate Justice (dissenting).

I cannot agree with the majority's conclusion that "(w)e are confronted here with an ambiguous order regarding alimony." ¹ While I do agree that this order clearly permits a modification in amount in the event that a material change in circumstances intervenes within three years of the date of the order, I cannot agree that the order may be modified so as to extend alimony payments beyond its three-year life.

Section 46b-86(a) of the General Statutes provides in pertinent part: "Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony ... may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party." (Emphasis added.) In my view, the language of the referee's decree precludes modification that would extend alimony beyond three years.

The order in issue, which is part of the decree, reads as follows: "The defendant shall pay the plaintiff alimony of $100.00 per week for a period of three years from the date of this memorandum. At the end of the three year period, the payment order of alimony shall terminate." (Emphasis added.) "A judgment is to be construed like other written instruments. The determinative factor is the intention of the court as gathered from all parts of the judgment. Effect must be given to that which is clearly implied as well as to that which is expressed." Cooper v. Cooper, 158 N.W.2d 712, 713 (Iowa 1968), quoting Whittier v. Whittier, 237 Iowa 655, 663, 23 N.W.2d 435 (1946). The same rules of interpretation apply in ascertaining the meaning of a judgment as in ascertaining the meaning of every other writing. Lesh v. Lesh, 8 Cal.App.3d 883, 890, 87 Cal.Rptr. 632 (1970). In interpreting a decree, particularly one issued in a divorce proceeding, the important object is to carry out the purpose and intent of the court that issued it. Pope v. Pope, 7 Ill.App.3d 935, 937, 289 N.E.2d 9 (1972). The language of an order must be given its ordinary meaning unless a technical or special meaning is clearly intended. Cf. Perruccio v. Allen, 156 Conn. 282, 285, 240 A.2d 912 (1968) (construing language of contract); General Statutes § 1-1(a) (construing language of statutes).

The referee ordered the defendant to pay weekly alimony in the amount of $100 "for a period of three years from the date of this memorandum." He then stated: "At the end of the three year period, the payment order of alimony shall terminate." The three-year limitation of the order is clear; it is mentioned not once, but twice. Moreover, the language "shall terminate" is mandatory, as opposed to permissive. See Akin v. Norwalk, 163 Conn. 68, 74, 301 A.2d 258 (1972). "Terminate," we have said, means to "come to a limit in time; to end." Merchants Bank & Trust Co. v. New Canaan Historical Society, 133 Conn. 706, 714, 54 A.2d 696, 700 (1947); Webster, Third New International Dictionary. The plain language of the order clearly...