Giordano v. Giordano ( 2020 )

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NANCY GIORDANO v. RAY GIORDANO
(AC 42497)
Alvord, Moll and Bishop, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the judgment of the trial court
granting the plaintiff’s motions to modify alimony and for contempt.
Pursuant to the parties’ separation agreement, which was incorporated
into the dissolution judgment, the defendant was required to pay the
plaintiff periodic alimony equal to 30 percent of his gross annual compen-
sation, up to an annual maximum limit. Thereafter, the trial court, follow-
ing an evidentiary hearing, determined that the alimony provision was
intended to include payments made to the defendant from certain pen-
sion benefits and, accordingly, granted the plaintiff’s motion to modify
the alimony order. The court additionally found the defendant in con-
tempt for his failure to pay alimony, and this appeal followed. Held:
1. The defendant could not prevail on his claim that the trial court erred
in interpreting the separation agreement to include his supplemental
pension as a basis for a modification of alimony, which was based on
his claim that the agreement unambiguously did not include that pension
as part of gross annual compensation: the court correctly determined
that the alimony provision was ambiguous, and correctly interpreted
‘‘gross annual compensation’’ as including the supplemental pension;
moreover, the language of the agreement provided that the list of pay-
ments qualifying as ‘‘gross annual compensation’’ was not exhaustive,
and it was apparent from the record that counsel and the defendant
contemplated the fact that once he began receiving this supplemental
pension, that event could serve as a basis for the plaintiff to file a motion
to modify.
2. The defendant’s claim that the trial court erred in failing to interpret the
separation agreement as distributing the supplemental pension to him
at the time of dissolution was unavailing; the defendant’s argument
was belied by the facts in the record and arguments of counsel at the
modification hearing, and the fact that the defendant crossed off the
reference to the supplemental pension on his financial affidavit, remov-
ing it from the list of property considered marital assets, led this court
to conclude that the supplemental pension was neither considered a
marital asset nor distributed at dissolution.
3. The trial court did not abuse its discretion in modifying the alimony award:
the court properly found that the alimony provision was modifiable with
the exception of the annual maximum limit; the alimony provision was
intended to remain modifiable upon a finding of a substantial change
in circumstances, because there was no provision stating that alimony
was nonmodifiable, and the actions taken by the court and counsel
at the dissolution hearing ensured that the provision would remain
modifiable; moreover, the court found a substantial change in circum-
stances, and applied the applicable statutory factors (§ 46b-82); further-
more, the court did not abuse its discretion as to the amount of alimony
it ordered because, in order to ensure that the plaintiff received an
award sufficient to maintain the standard of living she enjoyed prior to
the dissolution of the marriage, the court modified the alimony award,
in accordance with the intention of the original alimony order.
4. The trial court improperly granted the plaintiff’s motion for contempt:
although the court found the defendant in contempt for wilfully violating
the separation agreement’s provisions relating to alimony, the court
also indicated that the agreement was ambiguous as to whether the
supplemental pension was considered employment related income; this
court, having agreed with the trial court that the provision was ambigu-
ous, concluded that the alimony order was not clear and that the defen-
dant’s failure to make payments from it could not be considered a wilful
violation of an unambiguous order and, therefore, the record did not
support the court’s conclusion that the defendant’s failure to pay was
wilful.
Argued May 27—officially released September 15, 2020
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk, where the court, Hon. Den-
nis F. Harrigan, judge trial referee, rendered judgment
dissolving the marriage and granting certain other relief
in accordance with the parties’ separation agreement;
thereafter, the court, Hon. Michael E. Shay, judge trial
referee, granted the plaintiff’s motions to modify ali-
mony and for contempt, and the defendant appealed
to this court. Affirmed in part; reversed in part; judg-
ment directed.
Peter J. Zarella, with whom, on the brief, was Gary
I. Cohen, for the appellant (defendant).
Samuel V. Schoonmaker IV, with whom, on the brief,
were Wendy Dunne DiChristina and Peter M. Brynic-
zka, for the appellee (plaintiff).
Opinion
BISHOP, J. In this postmarital dissolution matter, the
defendant, Ray Giordano, appeals from the judgment
of the trial court granting the motions of the plaintiff,
Nancy Giordano,1 for modification and for contempt
relating to the defendant’s failure to pay alimony. We
affirm the judgment of the trial court related to the
plaintiff’s motion for modification of alimony, and we
reverse the court’s finding of contempt against the
defendant.
The following undisputed facts are pertinent to our
consideration of the issues on appeal. The marriage
of the parties was dissolved on November 17, 2004.
Included in the parties’ separation agreement, which
was incorporated into the judgment of dissolution, were
provisions related to periodic alimony that, in essence,
provided for the plaintiff to receive from the defendant
a monthly amount equal to 30 percent of the defendant’s
‘‘ ‘gross annual compensation’ ’’ up to a maximum limit
of $150,000 per annum. In particular, the agreement
provided the following: ‘‘3.1 Commencing as of the first
day of December, 2004, the [defendant] shall pay to the
[plaintiff], during his lifetime, until her death, remar-
riage, or cohabitation as defined by [General Statutes
§ 46b-86 (b)], whichever event shall first occur, as ali-
mony in a sum equal to [30] percent . . . of the [defen-
dant’s] ‘gross annual compensation’ from employment,
as hereinafter defined; provided, however, that in no
event shall the [plaintiff] receive more than $150,000
per annum as alimony. Accordingly, the [plaintiff] shall
not share in the [defendant’s] ‘gross annual compensa-
tion’ in excess of $500,000 in any calendar year.
‘‘3.2 Payments pursuant to paragraph 3.1 shall be
calculated from the [defendant’s] base salary, which
is currently $249,000 per annum and payable in equal
monthly installments on the first day of each calendar
month, in advance. Any payments due to the [plaintiff]
from the [defendant’s] ‘gross annual compensation’ in
excess of $240,000 per year shall be made within three
. . . days of the receipt of such compensation by the
[defendant].
‘‘3.3 (a) For purposes of . . . Article III, ‘gross
annual compensation’ shall mean all employment-
related payments including, but not limited to, salary,
base salary, bonus, draw, distributions, commission
payments, severance payments, disability payments,
unemployment compensation, and sign-on bonuses
received by the [defendant] in cash, by check or by
electronic transfer before any deductions, including,
but not necessarily limited to, federal, state or municipal
income taxes, social security, Medicare, insurance of
any kind, or payments made voluntarily by the [defen-
dant] to any defined contribution plan, e.g., a 401 (k)
plan or qualified savings plan. ‘Gross annual compensa-
tion’ shall also include income voluntarily deferred by
the [defendant] under a deferred compensation or simi-
lar plan and . . . any payments from disability insur-
ance. Any court of competent jurisdiction, upon the
motion of either party, shall retain jurisdiction to modify
alimony except as provided in paragraph 3.1. The
[defendant] shall take no action which has as its pur-
pose the defeating of the [plaintiff’s] right to receive
alimony.
‘‘(b) In the event that the [defendant] is self-employed
or is employed by a privately-held entity where he has
significant control over the amount and/or the structur-
ing of his compensation either by virtue of his direct
or indirect ownership interest in the entity or by virtue
of his position of authority in the entity, a court of
competent jurisdiction, upon the motion of either party,
shall have continuing jurisdiction to modify the defini-
tion of ‘gross annual compensation’ so as to ensure that
both parties will be treated fairly in accordance with
the spirit of this Article III.’’
On December 21, 2016, the plaintiff filed a postjudg-
ment motion for modification and, on February 26, 2018,
filed a motion for contempt, both relating to the defen-
dant’s retirement from employment and his failure to
pay alimony. Thereafter, the court, Hon. Michael E.
Shay, judge trial referee, conducted an evidentiary hear-
ing during which Judge Shay determined that the ali-
mony provision in the agreement contained ambiguities
related to the term ‘‘gross annual compensation.’’ Upon
consideration of the language of the agreement, the
colloquy between counsel and the court, Hon. Dennis
F. Harrigan, judge trial referee, at the time of the disso-
lution, and arguments of counsel and oral testimony at
the modification hearing, Judge Shay determined that
the term ‘‘gross annual compensation’’—which the
agreement further refined to include any compensation
from employment—was intended to include the pay-
ments currently being made to the defendant from his
deferred pension benefits.
Considering the amounts of the parties’ respective
incomes and expenses, and considering that the original
purpose of the alimony provision was to enable the
plaintiff to maintain a certain standard of living, the
court modified the periodic alimony order to $8100 per
month. Additionally, the court found the defendant in
civil contempt for his failure to pay alimony, but
declined to issue any sanctions based on this finding.
This appeal followed.
On appeal, the defendant claims that the trial court
erred in (1) failing to interpret the separation agreement
as distributing the supplemental pension to the defen-
dant at the time of the dissolution, (2) interpreting the
separation agreement to include the supplemental pen-
sion as a basis for a modification of alimony, and (3)
granting the plaintiff’s motion to modify. We review
each of these claims, albeit in a different order in which
they are presented.
At the outset, we note that ‘‘[o]ur review of a trial
court’s granting or denial of a motion for modification
of alimony is governed by the abuse of discretion stan-
dard. . . . To the extent that the trial court has made
findings of fact, our review is limited to deciding
whether such findings were clearly erroneous. . . . 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.’’ (Citation omitted;
internal quotation marks omitted.) Light v. Grimes, 156
Conn. App. 53, 64, 111 A.3d 551 (2015). To the extent
that the defendant has raised legal issues within his
overarching claim, we review those claims de novo. See
Rudy’s Limousine Service, Inc. v. Dept. of Transporta-
tion, 78 Conn. App. 80, 84, 826 A.2d 1161 (2003).
I
The defendant claims on appeal that the trial court
erred in interpreting the separation agreement to
include his supplemental pension as a basis for a modifi-
cation of alimony. Specifically, the defendant claims
that the separation agreement, in its provisions, unam-
biguously did not include the supplemental pension as
part of ‘‘gross annual compensation.’’ In response, the
plaintiff claims that the trial court correctly determined
that the alimony provision was ambiguous and correctly
interpreted ‘‘gross annual compensation’’ as including
the supplemental pension. We agree with the plaintiff.
We begin our analysis by setting forth the applicable
standard of review and principles of law. ‘‘It is well
established that a separation agreement that has been
incorporated into a dissolution decree and its resulting
judgment must be regarded as a contract and construed
in accordance with the general principles governing
contracts. . . . When construing a contract, we seek
to determine the intent of the parties from the language
used interpreted in the light of the situation of the
parties and the circumstances connected with the trans-
action. . . . [T]he intent of the parties is to be ascer-
tained by a fair and reasonable construction of the
written words and . . . 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. . . . When only one interpreta-
tion of a contract is possible, the court need not look
outside the four corners of the contract. . . . Extrinsic
evidence is always admissible, however, to explain an
ambiguity appearing in the instrument. . . .
‘‘If a contract is unambiguous within its four corners,
the determination of what the parties intended by their
contractual commitments is a question of law [and our
review is plenary]. . . . When the language of a con-
tract is ambiguous, [however] the determination of the
parties’ intent is a question of fact, and the trial court’s
interpretation is subject to reversal on appeal only if it
is clearly erroneous. . . .
‘‘Accordingly, [t]he threshold determination in the
construction of a separation agreement . . . is
whether, examining the relevant provision in light of
the context of the situation, the provision at issue is
clear and unambiguous, which is a question of law over
which our review is plenary. . . . Contract language is
unambiguous when it has a definite and precise mean-
ing . . . concerning which there is no reasonable basis
for a difference of opinion . . . . The proper inquiry
focuses on whether the agreement on its face is reason-
ably susceptible of more than one interpretation. . . .
It must be noted, however, that the mere fact that the
parties advance different interpretations of the lan-
guage in question does not necessitate a conclusion
that the language is ambiguous. . . . A court will not
torture words to import ambiguity where the ordinary
meaning leaves no room for ambiguity . . . .
‘‘In contrast, a contract is ambiguous if the intent of
the parties is not clear and certain from the language
of the contract itself. . . . [A]ny ambiguity in a contract
must emanate from the language used by the parties.
. . . The contract must be viewed in its entirety, with
each provision read in light of the other provisions . . .
and every provision must be given effect if it is possible
to do so. . . . If the language of the contract is suscepti-
ble to more than one reasonable interpretation, the
contract is ambiguous.’’ (Citations omitted; internal
quotation marks omitted.) Fazio v. Fazio, 162 Conn.
App. 236, 243–45, 131 A.3d 1162, cert. denied, 320 Conn.
922, 132 A.3d 1095 (2016).
The following language from the separation agree-
ment is relevant to our consideration of this issue: ‘‘3.1
Commencing as of the first day of December, 2004,
the [defendant] shall pay to the [plaintiff], during his
lifetime, until her death, remarriage, or cohabitation as
defined by § 46b-86 (b), whichever event shall first
occur, as alimony in a sum equal to [30] percent . . .
of the [defendant’s] ‘gross annual compensation’ from
employment, as hereinafter defined; provided, however,
that in no event shall the [plaintiff] receive more than
$150,000 per annum as alimony. Accordingly, the [plain-
tiff] shall not share in the [defendant’s] ‘gross annual
compensation’ in excess of $500,000 in any calendar
year. . . .
‘‘3.3 (a) For purposes of . . . Article III, ‘gross
annual compensation’ shall mean all employment-
related payments including, but not limited to, salary,
base salary, bonus, draw, distributions, commission
payments, severance payments, disability payments,
unemployment compensation, and sign-on bonuses
received by the [defendant] in cash, by check or by
electronic transfer before any deductions, including,
but not necessarily limited to, federal, state or municipal
income taxes, social security, Medicare, insurance of
any kind, or payments made voluntarily by the [defen-
dant] to any defined contribution plan, e.g., a 401 (k)
plan or qualified savings plan. ‘Gross annual compensa-
tion’ shall also include income voluntarily deferred by
the [defendant] under a deferred compensation or simi-
lar plan and . . . any payments from disability insur-
ance. Any court of competent jurisdiction, upon the
motion of either party, shall retain jurisdiction to modify
alimony except as provided in paragraph 3.1. The
[defendant] shall take no action which has as its pur-
pose the defeating of the [plaintiff’s] right to receive
alimony.’’
In its memorandum of decision, the court found that
the language of the agreement was ambiguous.2 Upon
our review of the relevant provision of the separation
agreement, we agree with the court that the language
is ambiguous as to what is included in the term ‘‘gross
annual compensation’’ and, specifically, whether that
term would include income from the defendant’s sup-
plemental pension.
We now turn to whether the defendant’s supplemen-
tal pension is included in the term ‘‘gross annual com-
pensation.’’ The defendant, a former executive at Gen-
eral Electric (GE), retired subsequent to the dissolution
of the parties’ marriage and began receiving this supple-
mental pension in the amount of approximately $23,000
per month in October, 2016.3 As noted, paragraph 3.1
of the separation agreement provides that ‘‘gross annual
compensation’’ means ‘‘income from employment’’ and,
on the basis of our review of the court’s colloquy with
counsel at the dissolution hearing, we find no fault in
the court’s conclusion that the supplemental pension
was intended to be included within that framework.
First, we note that the language of § 3.3 (a) of the
separation agreement provides that the list of payments
that qualify as ‘‘gross annual compensation’’ is not
exhaustive because the list ‘‘[includes], but [is] not lim-
ited to’’ the items that follow. In addition, at the dissolu-
tion hearing, the defendant was questioned by counsel
for the plaintiff and testified that he understood that
the alimony award was subject to modification up to
the cap of $150,000 per annum.4 It is apparent from the
record that counsel and the defendant contemplated
the fact that once he had retired and had begun receiv-
ing this supplemental pension, that event could serve
as a basis for the plaintiff to file a motion to modify in
order to attempt to receive some of that supplemental
pension in the form of alimony. Indeed, counsel for the
defendant at the modification hearing invited the court
to consider that colloquy in deciding the issue.5
Accordingly, we conclude that the court did not
improperly interpret the separation agreement as
including the defendant’s supplemental pension within
the definition of ‘‘gross annual compensation.’’
II
The defendant also claims on appeal that the court
erred in failing to interpret the separation agreement
as distributing the supplemental pension to him at the
time of dissolution. Specifically, the defendant claims
that the court incorrectly relied on parol evidence to
rewrite the separation agreement in order to treat the
supplemental pension as if it were undistributed prop-
erty. The plaintiff argues that the defendant’s claim is
contrary to the position that he took at the modification
hearing, and that article II of the separation agreement
equally divided all of the defendant’s clearly identified
employment related assets, but it did not address the
supplemental pension. We agree with the plaintiff.
At the modification hearing, the court observed that
the defendant had originally listed the supplemental
pension as an asset on his financial affidavit, but had
thereafter specifically crossed it out and placed his
initials next to the change.6 Additionally, counsel for the
defendant at the modification hearing explicitly agreed
that the pension had not been distributed. When ques-
tioned by the court as to whether the supplemental
pension had been divided as property at the time of the
marital dissolution, counsel for the defendant remarked
that ‘‘nobody claims that this asset was ever a marital
asset.’’7 Further, at the dissolution hearing, the record
reflects that counsel for the defendant had asked the
defendant if he understood that the supplemental pen-
sion was not being divided along with his GE base
pension, to which the defendant responded in the affir-
mative.8
The defendant’s argument that the supplemental pen-
sion had been distributed at the time of dissolution is
belied by the facts in the record and the arguments of
counsel at the modification hearing. In particular, the
fact that the defendant had crossed off the reference
to the supplemental pension on his financial affidavit,
removing it from the list of property to be considered
assets, leads us to the conclusion that the supplemental
pension was neither considered a marital asset nor dis-
tributed at dissolution. Additionally, the defendant’s
counsel at the modification hearing repeatedly took the
position that the pension was not a marital asset and,
thus, the defendant’s contradictory argument on appeal
is unavailing.
III
The defendant’s final claim as to the modification of
alimony is that the trial court erred in a number of ways
in granting the motion to modify. Specifically, he claims
that (1) ‘‘[t]he trial court did not modify anything,’’ (2)
‘‘if construed as a modification, the trial court exceeded
its authority,’’ (3) ‘‘there was not a sufficient change of
circumstances to modify alimony,’’ and (4) ‘‘the trial
court made errors in setting the modified alimony.’’ The
plaintiff responds that the trial court, having found a
substantial change in circumstances, did not abuse its
discretion in modifying the alimony award. We agree
with the plaintiff.
First, with respect to whether the court had authority
to modify the alimony order, the court found that the
alimony provision was modifiable with the exception
of the $150,000 cap on what the plaintiff may receive.
We agree with the court’s finding on this issue.
‘‘It is a well settled principle of matrimonial law that
courts have the authority under . . . § 46b-86 to pre-
clude the modification of alimony awards. . . . Section
46b-86 (a) itself provides in relevant part that [u]nless
and to the extent that the decree precludes modification
. . . any final order for the periodic payment of perma-
nent alimony . . . may at any time thereafter be contin-
ued, set aside, altered or modified by said court upon
a showing of a substantial change in the circumstances
of either party. . . . This statute clearly permits a trial
court to make periodic awards of alimony nonmodifi-
able.’’ (Emphasis omitted; internal quotation marks
omitted.) Brown v. Brown, 148 Conn. App. 13, 24–25, 84
A.3d 905, cert. denied, 311 Conn. 933, 88 A.3d 549 (2014).
In the present case, the alimony provision was clearly
intended to remain modifiable by a court of competent
jurisdiction upon a finding of a substantial change in
circumstances. This is evidenced in the record by the
fact that there is no provision stating that the alimony
provision is nonmodifiable, along with the actions taken
by the court and by counsel at the dissolution hearing
to ensure that the separation agreement made clear
that the alimony provision was to remain modifiable.9
Therefore, once the court found a substantial change
in circumstances, it thereafter had the authority to mod-
ify the alimony order. This includes both the authority
to modify the amount of the order, as well as the author-
ity to determine whether the supplemental pension is
characterized as a percentage of the defendant’s earn-
ings; because the percentage provision was not stated
as being nonmodifiable, it is, therefore, modifiable.
Accordingly, we agree with the trial court’s conclusion.
Next, with respect to whether the court erred in find-
ing there to be a substantial change in circumstances
as would warrant a modification of the alimony award
and, further, whether the amount awarded was an abuse
of the court’s discretion, we are mindful that § 46b-86
(a) broadly provides that an alimony award may be
modified by the court upon a showing of a substantial
change in the circumstances of either party, and that a
‘‘trial court’s discretion is essential’’ when it determines
whether a modification is justified. Dan v. Dan, 315
Conn. 1, 9, 105 A.3d 118 (2014). We also adhere to the
following legal principles. ‘‘Trial courts are vested with
broad and liberal discretion in fashioning orders con-
cerning the type, duration and amount of alimony and
support, applying in each case the guidelines of the
General Statutes. If the court considers the relevant
statutory criteria when making its alimony and support
award, the award may not be disturbed unless the court
has abused its discretion.’’ (Internal quotation marks
omitted.) Schwarz v. Schwarz, 124 Conn. App. 472, 485,
5 A.3d 548, cert. denied, 299 Conn. 909, 10 A.3d 525
(2010). ‘‘When the initial award [is] not sufficient to
fulfill the underlying purpose of the award . . . an
increase in the supporting spouse’s salary, in and of
itself, may justify an increase in the award.’’ Dan v.
Dan, supra, 15–16.
In its memorandum of decision, the court found that
there had been a substantial change of circumstances.
Specifically, the court found that, ‘‘there has been a
substantial change of circumstances since the date of
the initial order in that, among other things: (a) the
assets of both the [defendant] and the [plaintiff] have
increased; (b) the [defendant] has retired from his prin-
cipal employment as of October 1, 2016; and (c) the
[defendant’s] salary and bonus have ceased.’’ The court
also found that, ‘‘in addition, the parties stipulated in
open court . . . that the receipt by the [defendant] of
his supplemental pension would be additional grounds
for the [plaintiff] to seek a modification of the alimony
order; and that the [defendant] did, in fact, become
eligible to commence receipt of payments from the
supplemental pension on or about October 1, 2016.’’
Accordingly, the court, having found a substantial
change in circumstances in light of the termination of
the defendant’s salary and bonuses, in conjunction with
the vesting of his supplemental pension, thereafter
applied the factors in General Statutes § 46b-82, ulti-
mately awarding $8100 per month to the plaintiff in
alimony. We are not persuaded that the court’s action in
this regard would constitute an abuse of its discretion.
With regard to the defendant’s claim that the amount
of alimony ordered was an abuse of discretion, we also
disagree. As found by the trial court, the dissolution
court’s original alimony order was intended to sustain
a certain standard of living for the plaintiff for the
remainder of her or the defendant’s life. This is further
evidenced by the transcript of the dissolution hearing,
in which counsel for the plaintiff states: ‘‘The parties
have agreed that [the plaintiff] is going to receive [30]
percent of [the defendant’s] gross annual compensation
from employment as alimony and it’s payable during
his lifetime, her lifetime, until her death or marriage
or cohabitation.’’ In order to ensure that the plaintiff
received an award sufficient to maintain the standard
of living she enjoyed prior to the dissolution of her
marriage to the defendant; see Dan v. Dan, supra, 315
Conn. 15–16; the court, after identifying a substantial
change in circumstances, modified the alimony award
in accordance with the intention of the original order.
Accordingly, we conclude that the court did not abuse
its discretion in awarding $8100 per month to the
plaintiff.
IV
Finally, with regard to the court’s granting of the
plaintiff’s motion for contempt against the defendant,
the defendant argues that the motion for contempt
should have been denied because there was no basis
for the court to conclude that the parties intended that
the supplemental pension would be part of the defen-
dant’s ‘‘gross annual compensation’’ at the time of disso-
lution. While we disagree with the defendant’s reason-
ing, we agree that the motion for contempt should have
been denied.
‘‘A finding of contempt is a question of fact, and our
standard of review is to determine whether the court
abused its discretion in failing to find that the actions
or inactions of the [defendant] were in contempt of a
court order. . . . To constitute contempt, a party’s
conduct must be wilful. . . . Noncompliance alone will
not support a judgment of contempt. . . . A finding
that a person is or is not in contempt of a court order
depends on the facts and circumstances surrounding
the conduct. The fact that an order has not been com-
plied with fully does not dictate that a finding of con-
tempt must enter. . . . [It] is within the sound discre-
tion of the court to deny a claim for contempt when
there is an adequate factual basis to explain the failure
to honor the court’s order.’’ (Internal quotation marks
omitted.) Bauer v. Bauer, 173 Conn. App. 595, 600, 164
A.3d 796 (2017).
‘‘Guided by the principles that limit our review, our
analysis of a judgment of contempt consists of two
levels of inquiry. First, we must resolve the threshold
question of whether the underlying order constituted
a court order that was sufficiently clear and unambigu-
ous so as to support a judgment of contempt. . . . This
is a legal inquiry subject to de novo review. . . . Sec-
ond, if we conclude that the underlying court order
was sufficiently clear and unambiguous, we must then
determine whether the trial court abused its discretion
in issuing, or refusing to issue, a judgment of contempt,
which includes a review of the trial court’s determina-
tion of whether the violation was wilful or excused by
a good faith dispute or misunderstanding.’’ (Citations
omitted.) In re Leah S., 284 Conn. 685, 693, 935 A.2d
1021 (2007).
In its memorandum of decision, the court found the
defendant in contempt for wilfully violating the separa-
tion agreement’s provisions relating to alimony. The
court stated: ‘‘The [defendant] admits that he failed to
make monthly payments commencing in January, 2018
and ending in May, 2018, but excused his failure based
upon the fact that the compensation on which he based
the lump sum payment in June was subject to the
upfront withholding of taxes. . . . Nevertheless, he did
have available alternate sources with which to pay
something. Moreover, the agreement provides that
where a payment is based upon income in excess of
$240,000 per annum, he has an obligation to make his
required payment to her within three days of receipt.
The evidence is clear that he did not make such timely
payment, notwithstanding the fact that he had the
wherewithal to do so.’’ The court then went on to find
that ‘‘the evidence supports a finding that the underlying
order that periodic alimony be paid on a monthly basis
was clear and unambiguous; that the income from the
supplemental pension is an ‘employment related pay-
ment’; that the [defendant] failed and neglected to pay
the monthly installments for the months of January
through May, 2018; that the [defendant] had the means
to make said payments; that his choice not to do so
was wilful and amounts to contempt; that his lump sum
payment of $150,000 on June 8, 2018, is a mitigating
factor; and that the [plaintiff] failed to demonstrate any
credible evidence of substantial harm as a result thereof
that would warrant the imposition of sanctions.’’
Also in its memorandum of decision, as well as during
the hearing on the motion for modification, however,
the court expressed its view that the agreement was
ambiguous as to whether the supplemental pension was
considered employment related income for purposes
of its inclusion in the alimony pool. In particular, at the
hearing, the court stated: ‘‘If [the separation agreement]
was perfect you guys wouldn’t be here today. If it was
so clear, if it was not ambiguous you wouldn’t be here
today.’’ The court’s determination that the provision at
issue was ambiguous, with which we agree, leads to
the conclusion that the alimony order was not clear and,
therefore, that the defendant’s failure to make payments
from it could not be considered a wilful violation of
an unambiguous order. In the absence of a clear and
unambiguous order underpinning the court’s finding of
contempt, and on the basis of the court’s own finding
of ambiguity within the alimony order, we conclude
that the record does not support the court’s conclusion
that the defendant’s failure to pay the then existing
alimony order was wilful, and, therefore, that the stan-
dard for a finding of contempt was not satisfied.
The judgment is reversed only as to the finding of
contempt and the case is remanded with direction to
deny the plaintiff’s motion for contempt; the judgment
as to the modification of alimony is affirmed.
In this opinion the other judges concurred.
1
The plaintiff is now known as Nancy Evans.
2
In its memorandum of decision, the court, Hon. Michael E. Shay, judge
trial referee, explained that, ‘‘[w]hat was not agreed [to at the time of
dissolution], and which remains in dispute, is whether or not the supplemen-
tal pension is to be treated as ‘gross annual compensation’ subject to a
claim by the [plaintiff] for alimony.’’ In addition, at the modification hearing,
the court stated: ‘‘If [the separation agreement] was perfect you guys
wouldn’t be here today. If it was so clear, if it was not ambiguous you
wouldn’t be here today.’’
3
At the modification hearing, the defendant testified that although the
supplemental pension went into pay status on October 1, 2016, following his
official retirement, he did not receive any cash flow from the supplemental
pension until approximately five months later, due to a procedure by which
GE prepays the retiree’s Federal Insurance Contributions Act (FICA) and
Medicare contributions, and the retiree repays GE with the first few pay-
ments of the supplementary pension proceeds.
4
During this questioning, the following exchange occurred between the
plaintiff’s counsel and the defendant:
‘‘Q. You understand that the alimony is subject to modification but that
[the plaintiff] can never seek more than $150,000 dollars per year? Correct?
‘‘A. Yes.
‘‘Q. Okay. And, that, if for example, if you should retire and received
supplemental pension payments which haven’t been dealt with in this
divorce, that there is the possibility that she may come back to court and
seek alimony payments based on the fact that you’re getting the supplemental
pension payments?
‘‘A. I understand that she always has the right to come back to court to
seek some change in what we’re agreeing to today.’’
5
At the modification hearing, counsel for the defendant stated: ‘‘[The
plaintiff’s counsel] suggests that Your Honor, and I agree, should review
the transcript of the proceedings before Judge Harrigan and the terms of
the separation agreement that were ultimately approved by the court. And
I respectfully submit that the transcript and the separation agreement both
confirm . . . that the plaintiff’s claim to be awarded a share of [the defen-
dant’s] benefits under the supplemental pension plan to which he did not
become eligible until postjudgment that that source of income is not one
of the sources of income that is enumerated in the separation agreement
and the judgment . . . .’’
6
In its memorandum of decision, the court explained that the defendant
had originally included the supplemental pension as an asset on his October
26, 2004 financial affidavit, but later crossed the entry out after concluding
that his interest in the pension had not yet vested and, therefore, that the
supplemental pension was not marital property subject to equitable division.
The court then remarked: ‘‘In this he was clearly mistaken, as a then recent
decision of the Connecticut Supreme Court clearly and unambiguously held
that ‘unvested pension benefits are property for equitable distribution . . . .’
Bender v. Bender, 258 Conn. 733, [754, 785 A.2d 197] (2001). This holding
was further elucidated in Reville v. Reville, 312 Conn. 428, 451, [93 A.3d
1076] (2014), when the court held that ‘any retirement or employment benefit
potentially receivable by a party to a dissolution action should be disclosed
on that party’s financial affidavit along with all known details as to its value,
vesting requirements and current status.’ [Emphasis omitted.] Despite this,
the supplemental pension, which ultimately did vest, was neither divided
nor offset by other marital property at the time of the dissolution.’’
7
Additionally, in his opening remarks to the court, the defendant’s counsel
at the modification hearing stated: ‘‘I think that Your Honor will find, after
hearing the evidence that [the defendant’s] interest, if any, in this supplemen-
tal pension plan did not even spring up as an asset until he qualified as a
participant at some time long after the entry of the dissolution decree
because the terms of this particular plan require that in order for . . . a
GE employee to be eligible for benefits under the plan there are two criteria
that must be met . . . and neither of those criteria had been met as of the
date of the dissolution in 2004.’’
8
At the dissolution hearing, the following exchange occurred between
the defendant and his counsel on redirect examination:
‘‘Q. . . . [P]ursuant to paragraph 2.7, you are dividing your GE pension
plan. Correct?
‘‘A. The base plan that is subject to a [qualified domestic relations order]?
‘‘Q. Yes.
‘‘A. Yes.
‘‘Q. Okay. And you understand that that’s just the base plan and it does
not include the supplemental pension plans?
‘‘A. That’s correct.
‘‘Q. Okay.’’
9
At the dissolution hearing, counsel for both parties and the court engaged
in the following colloquy:
‘‘[The Defendant’s Counsel]: . . . So, just to be clear they’re agreeing that
the alimony can be modified but that the terms in paragraph 3.1 which state
that [the plaintiff] is not to receive more than $150,000 a year in alimony
is nonmodifiable.
‘‘The Court: I think that that’s clear and also that it’s the alimony that’s mod-
ifiable.
‘‘[The Plaintiff’s Counsel]: Correct.
‘‘[The Defendant’s Counsel]: Correct.
‘‘The Court: Not the definition.’’