Tremaine v. Tremaine, 11164

• Decision Date: 27 July 1994
• Docket Number: No. 11164,11164
• Citation: 643 A.2d 1291,34 Conn.App. 785
• Court: Connecticut Court of Appeals
• Parties: Nancy TREMAINE v. John M. TREMAINE.

Page 1291

643 A.2d 1291

34 Conn.App. 785

Nancy TREMAINE v. John M. TREMAINE.

No. 11164.

Appellate Court of Connecticut.

Argued Feb. 22, 1994.

Decided June 3, 1994.

Certification Granted

Limited to the Following Issues

July 27, 1994.

Wesley W. Horton, Hartford, with whom were Richard L. Goldblatt, Hamden, and Susan M. Cormier, Hartford, and, on the brief, Christy L. Scott, Legal Intern, for appellant (defendant).

Herman H. Tarnow, New York City, for appellee (plaintiff).

Before DUPONT, C.J., and LAVERY and HEIMAN, JJ.

DUPONT, Chief Judge.

This is an appeal by a defendant who was ordered on February 14, 1992, to pay lump sum alimony of $350,000 and periodic alimony of $1000 per week until June 1, 1995, retroactive to June 1, 1990, to the plaintiff. The defendant claims that the trial court (1) was precluded from ordering the payment of lump sum alimony by the parties' separation agreement dated December 2, 1987, which was incorporated into the dissolution judgment dated February 5, 1988, (2) improperly excluded the testimony of the plaintiff's former attorney on the basis of the attorney-client privilege, and (3) improperly construed a trust agreement under which the defendant is an income beneficiary to determine that its corpus is an asset of the defendant. We agree with the defendant on his first claim and reverse the judgment of the trial court.

I

The parties were married in 1972 and had four minor children as of the date of dissolution. In July, 1986, the plaintiff filed a complaint seeking a legal separation from the defendant, alleging that their marriage had broken down irretrievably. The complaint was later amended to seek a decree of dissolution.

The parties' separation agreement, which was approved by trial court, Novack, J., on February 5, 1988, ¹ provided, among other things, that the defendant would pay alimony to the plaintiff for seven years from the date of the dissolution decree or until her death or remarriage, whichever occurred first. The plaintiff agreed, however, "not to petition for alimony during the first twenty-four months" following the dissolution decree. At the end of that two year period, the agreement provided that the court "will enter appropriate orders for alimony to the WIFE, but the alimony term shall not exceed a date of seven years from the date of the decree of dissolution of marriage. The court, at such time, shall take into consideration the statutory criteria as set forth in Section 46b-81 of the General Statutes of Connecticut, ² as well as the HUSBAND's obligation for the child support provisions as provided in this agreement.... Any order for alimony entered in accordance with the above shall be retroactive to the date which is computed to be twenty-four months from the date of the decree of dissolution of marriage."

After the two year period had elapsed, the plaintiff, who had not remarried, sought alimony. The trial court, Hon. Margaret C. Driscoll, state trial referee, issued a memorandum of decision on February 14, 1992, stating that the only limit on its discretion in awarding alimony was that payments could be made for no more than five years because under the stipulation the alimony was made retroactive to two years after the decree and could not last beyond seven years after the decree. It went on to say that "[w]hile the court inadvertently used the word periodic in describing the alimony the court could award in its memorandum of decision on the motion to strike, ³ that was not an accurate statement. The court may indeed award both lump sum and periodic alimony. See Eldridge v. Eldridge, 4 Conn.App. 489 [492, 495 A.2d 283 (1985) ]; Basile v. Basile, 185 Conn. 141, 142, 143 [440 A.2d 876 (1981) ]. There appears to be no provision in the separation agreement which specifically prohibits it, and the provision concerning alimony does not limit it in any way except duration."

The court then noted that the plaintiff had received the family residence, valued between $750,000 and $975,000, and that she had assumed two mortgages on the property totaling $239,000. It also noted that she had received physical custody of the four children, and that the defendant had been ordered to pay $36,000 annually in child support. The court then found that at the time of the dissolution the defendant had assets of $1,722,266 and an annual income of $136,000. The plaintiff had minimal work experience and had monthly expenses of $10,917. The court further found that the parties had been married for fourteen years, that the cause of the dissolution was the defendant's conduct, that both parties were accustomed to an "exceedingly affluent lifestyle and led active social lives," that the defendant's income and assets were substantially more than he reported in his financial affidavits, and that the plaintiff's employability was limited by her age, her long absence from the labor market, and the needs of her children, whose best interests counseled against the plaintiff's seeking full-time employment. After reviewing the factors listed in General Statutes § 46b-82, ⁴ the court ordered the payment of both periodic and lump sum alimony.

The defendant claims that the trial court improperly determined that it had the power to award lump sum alimony, arguing that the separation agreement authorized an award of only periodic alimony. This claim must be resolved by a review of that agreement.

A separation agreement incorporated into a judgment must be construed as a contract. Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990); Zivic v. Zivic, 26 Conn.App. 5, 7, 596 A.2d 475 (1991). "A contract is to be construed as a whole and all relevant provisions will be considered together." Lar-Rob Bus Corp. v. Fairfield, 170 Conn. 397, 407, 365 A.2d 1086 (1976). A contract must be interpreted to effectuate the intent of the parties, as determined by the language used by the parties, the circumstances surrounding the transaction, and the purpose the parties sought to accomplish. Barnard v. Barnard, supra, 214 Conn. at 109, 570 A.2d 690; Lar-Rob Bus Corp. v. Fairfield, supra, 170 Conn. at 406-407, 365 A.2d 1086. "In interpreting contract terms, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract." Sturman v. Socha, 191 Conn. 1, 10, 463 A.2d 527 (1983); Marcus v. Marcus, 175 Conn. 138, 141-42, 394 A.2d 727 (1978). Here, our task is to determine whether the trial court correctly read the term "alimony" as used in the separation agreement to include lump sum alimony.

The defendant argues that the separation agreement, when read as a whole, demonstrates that the parties intended that any alimony award be limited to periodic alimony. He cites not only the language in article II of the separation agreement entitled "Alimony and Support," but also various provisions throughout the separation agreement.

The language of article II does not expressly exclude or include lump sum alimony. It does specify, however, that the defendant's obligation to pay alimony will commence two years following the date of the dissolution decree, with any subsequent alimony order retroactive to that date, and that the alimony "term" will expire seven years after the date of the decree. The payment obligation would also cease upon the death of the defendant or the plaintiff, or the plaintiff's remarriage. The defendant correctly contends that these provisions are indicative of an award of periodic alimony. See, e.g., Ashton v. Ashton, 31 Conn.App. 736, 744-45, 627 A.2d 943, cert. denied, 228 Conn. 901, 634 A.2d 295 (1993); Vandal v. Vandal, 31 Conn.App. 561, 564-65, 626 A.2d 784 (1993).

The defendant also cites other parts of the separation agreement in support of his interpretation. These include a provision in article X, entitled "Tax Application," that declares all payments pursuant to the alimony section of article II "are intended to be alimony deductible by the HUSBAND and includible by the WIFE in their entirety.... The WIFE agrees to include all of the payments which she receives as set forth in [the alimony provisions] as income in her Federal and, if appropriate, state and/or Municipal tax returns and that she shall be solely responsible for any and all taxes on such income." The defendant argues that because lump sum alimony is generally not taxable to the payee under the Internal Revenue Code, the provision is indicative of the parties' intent that the agreement does not authorize an award of lump sum alimony. We agree that this provision is incompatible with an intent that the defendant pay lump sum alimony. See 26 U.S.C. §§ 71(a) and (f) and 215.

The defendant also cites a provision in article XIII that states that "[t]he termination date of alimony, as provided in [article II] shall not be subject to any modification as provided in Section [46b-86(a) ] of the General Statutes of Connecticut. Except as to this termination date the law of the State of Connecticut as to substantial change in circumstances shall be applicable." He contends that because lump sum alimony is not modifiable as a matter of law, whereas periodic alimony is modifiable unless the decree explicitly precludes modification, the presence in the separation agreement of language regarding the nonmodifiability of the alimony payments indicates that only periodic alimony was contemplated by the parties. "Lump sum alimony, unlike periodic alimony, is a final judgment which cannot be modified even should there be a substantial change in circumstances." Scoville v. Scoville, 179 Conn. 277, 279-80, 426 A.2d 271 (1979). We therefore agree with the defendant.

Despite the provisions of the separation agreement cited by the defendant, the trial court found that nothing in that...