Giordano v. Giordano, 200 Conn. App. 130 (2020) (modification of alimony & interpretation of separation agreement; contempt).
Officially released September 15, 2020.
In Short: (1) ambiguity in the definition of “income” for purposes of alimony strikes again, (2) alimony may be modified from a percentage to a fixed number unless the order prohibits such a change, and (3) ambiguous provisions will not support a finding of contempt.
The parties were divorced in 2004 by separation agreement. The Judgment provided that Wife receive a monthly amount equal to 30% of Husband’s “gross annual compensation” to a limit of $150,000 per year. The Judgment provided further detailed additional language which included any compensation from employment.
In 2016, Wife filed post-judgment motions for modification and for contempt related to Husband’s retirement from employment and failure to pay alimony. The trial court determined that the term “gross annual compensation” was intended to include payments Husband was receiving from his deferred pension benefits. The trial court considered the respective incomes and expenses and the original purpose of the award regarding standard of living and modified the alimony order to $8,100 per month. The trial court found Husband in contempt for failure to pay alimony, but issued no sanction based on the finding.
Husband appealed, claiming that the trial court erred by (1) including the pension as a basis for modification of alimony, (2) failing to interpret the separation agreement as awarding him the pension at the time of the dissolution, (3) granting Wife’s motion for modification of alimony, and (4) holding him in contempt where there was no basis to conclude that the pension would be part of “gross annual compensation.”
The threshold issue of whether the terms of a separation agreement are clear and unambiguous is subject to plenary review within the four corners of the document. The Appellate Court agreed with the trial court that the separation agreement was ambiguous and reasonably susceptible to more than one interpretation as to “gross annual compensation” and whether alimony would include income from the pension. The Appellate Court noted that the record made it clear that Husband had contemplated that once he retired and began receiving his pension, that this could serve as a basis for modification of alimony, and found no error in the trial court’s inclusion of that income within the definition of “gross annual compensation.”
As to Husband’s claim that the trial court erred in failing to interpret the separation agreement as awarding him the pension at time of dissolution, the Appellate Court noted that the separation agreement did not address the pension and that Husband had crossed it out on his financial affidavit and initialed the change. Further, Husband’s counsel at the modification hearing agreed that the pension had not been distributed, contrary to his position on appeal. The Appellate Court found no error.
The Appellate Court found no error with regard to the modification of alimony. The separation agreement permitted modification up to the $150,000 cap. The percentage provision was not stated as non-modifiable. The trial court has substantial discretion in determining whether there has been a substantial change in circumstances.
The Appellate Court held that the ambiguity in the terms of the separation agreement could not support the finding of contempt. A contempt finding must be underpinned by a clear and unambiguous court order. It reversed as to this point only, albeit for different reasons than those advanced on the appeal by Husband.