Sturtevant v. Sturtevant

• Decision Date: 21 July 1959
• Citation: 153 A.2d 828,79 A.L.R.2d 604,146 Conn. 644
• Parties: , 79 A.L.R.2d 604 Bhima STURTEVANT v. James M. STURTEVANT. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 828

153 A.2d 828

146 Conn. 644, 79 A.L.R.2d 604

Bhima STURTEVANT v. James M. STURTEVANT.

Supreme Court of Errors of Connecticut.

July 21, 1959.

Donald O'Brien, New London, for appellant (plaintiff).

William H. Shields, New London, with whom, on the brief, was Griswold Morgan, New London, for appellee (defendant).

Before DALY, C. J., and BALDWIN, KING, MURPHY and MELLITZ, JJ.

KING, Justice.

On July 16, 1934, the plaintiff and the defendant were divorced in Reno, Nevada. The defendant then was, and still is, a practicing physician. A separation agreement, hereinafter referred to as the agreement, had been executed on July 9, and at the parties' request it was approved by the court and incorporated in the divorce decree. By the terms of the agreement, jurisdiction was expressly retained by the court to modify, 'as circumstances in the future may then warrant,' the provisions with regard to alimony for the plaintiff, support for the three minor children, their custody, and the defendant's visitation rights. Actually, the decree has never been modified. The minor children have become of age and are not involved in the present proceeding. The plaintiff did not remarry, but the defendant did. The agreement provided that the payments for the support of the plaintiff should cease upon her remarriage, but it did not mention remarriage by the defendant, although the divorce was absolute.

The plaintiff, now a resident of Maine, instituted this action against the defendant, a resident of Connecticut, claiming that he had not made in full the alimony payments due her under the judgment of divorce. The relief sought by her includes money damages and a 'judgment declaring the rights and liabilities of the parties by virtue of said agreement of * * * [July] 9, 1934.' There was, of course, no claim that the plaintiff was not entitled to recover in this suit any accrued arrearages of alimony which she could prove. Her right so to do was settled by cases such as German v. German, 122 Conn. 155, 158, 188 A. 429. The dispute as to whether there were any arrearages turned, as disclosed by the plaintiff's claims of law made on the trial, on whether the defendant had correctly computed the amount of the plaintiff's alimony payments under the rule set forth in the agreement. It provided that the defendant should pay, as alimony and support, 'one-half * * * of his net income,' of which one-third was to be alimony and two-thirds support for the children. In other words, the plaintiff was to receive, as alimony, one-sixth of the defendant's 'net income.' The parties are in dispute as to the meaning of the words 'net income' as used in the agreement. It was also provided that '[t]he net income of the * * * [defendant] is to be determined upon the basis of his Federal Income Tax Return and in order that the * * * [plaintiff] may have accurate information relative thereto' the defendant was to send the plaintiff a copy of the return simultaneously with his filing of the original. It was further provided that the 'fiscal year' with respct to payments under the agreement begins on March 15 and ends on the following March 14. The payments 'to be made during a 'Fiscal Year' will be determined upon the basis of the income shown by the Federal Income Tax Return for the previous calendar year. Payments are to be made monthly * * *.' Another provision stated: 'The * * * [defendant] agrees to use his best efforts to keep the running expenses of his office down to a minimum.' The court found that the plaintiff failed to prove that the defendant owed her anything. There is no claim that the defendant's income tax returns were not truthful or factually accurate.

At the time the agreement was made, alimony payments by a husband were not deductible from his income in determining the amount of his taxable income, and they were not treated as income to the wife for purposes of determining her income tax liability. Gould v. Gould, 245 U.S. 151, 154, 38 S.Ct. 53, 62 L.Ed. 211; Douglas v. Willcuts, 296 U.S. 1, 8, 56 S.Ct. 59, 80 L.Ed. 3. In 1942, however, the Internal Revenue Code was amended to make alimony payments deductible in the husband's income tax return and includible as income in the wife's return. Int. Rev. Code of 1939, c. 1, §§ 22(k), 23(u), 171, 56 Stat. 816, 26 U.S.C. §§ 22(k), 23(u), 171 (1940 ed., Sup. II); see 26 U.S.C. §§ 71, 215, 682 (1952 ed., Sup. V). The basic claim of the plaintiff, broadly construed, is that whatever status alimony payments may have for income tax purposes, they cannot be subtracted from what is commonly understood to be net income in computing the amount which the defendant is required to pay her under the terms of the agreement.

'The intention of the parties to a contract is to be determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. The question is not what intention existed in the minds of the parties but what intention is expressed in the language used.' Ives v. City of Willimantic, 121 Conn. 408, 411, 185 A. 427, 428; Buckley v. Buckley, 144 Conn. 403, 409, 133 A.2d 604. Words in an agreement 'must be accorded their common meaning and usage where they can be sensibly applied to the subject matter of the contract.' Beach v. Beach, 141 Conn. 583, 589, 107 A.2d 629, 632. The agreement as a whole must be considered, and each part given effect if possible. Finlay v. Swirsky, 103 Conn. 624, 634, 131 A. 420; Baydrop v. Second National Bank, 120 Conn. 322, 327, 180 A. 469. It is apparent from the agreement that the parties felt that the defendant's net income would be properly reflected in his income tax returns when legally prepared, as they apparently were. But it is significant that the...