L.W. v. M. W. 208 Conn. App. 497 (2021) (Definition of Earned Income; Inadequate Record for Review on Appeal; Affidavit of Services & Counsel Fees)
Officially released November 2, 2021.
In Short: (1) Where a separation agreement defines specific documents to be produced “reflecting earned income” then the definition of earned income will be the amount reflected on those specified documents, irrespective of self-employment expenses or allowable tax deductions. (2) Order the necessary transcripts or your appeal will fail to be reviewed. (3) An Affidavit of Services is not always necessary to uphold an award of attorney’s fees.
The parties were married in 1996 and divorced in 2012 by separation agreement. The separation agreement provided that Husband was to pay Wife unallocated alimony of $3,000 per month, with an additional amount owed based on Husband’s annual earnings. In any year that Husband did not pay the maximum annual alimony amount, upon written request of Wife, he was to provide copies of his quarterly paychecks and year-end W-2 or 1099 forms “reflecting earned income.” In March 2019, pursuant to C.G.S. § 46-56c, the trial court entered an order requiring Husband to pay 60% of postsecondary education support and Wife to pay 40%.
In October 2019, Wife filed two post judgment motions for contempt. Wife’s first motion alleged Husband failed to provide documentation for his 2018 earned income. Wife’s second motion alleged that Husband had refused to pay his share of their child’s college tuition, and, because of that refusal, Wife was forced to take a loan to cover those expenses. The trial court granted both of Wife’s motions for contempt and ordered Husband to pay counsel fees.
In November 2019, Wife filed a third motion for contempt, alleging that Husband failed to comply with the separation agreement requirement that he pay unallocated alimony based on his earned income for 2018. The trial court denied Wife’s third motion, reasoning that Husband was to pay Wife 30% of earned income in excess of $102,000 and less than $150,000. The trial court concluded that Husband’s income was $102,363, as reflected in his tax return after self-employment expenses and deductions, and Wife was, therefore, not entitled to additional alimony.
Wife appealed the denial of her third motion for contempt, arguing that the trial court incorrectly calculated Husband’s earned income for 2018. Husband appealed the granting of Wife’s first two motions for contempt, arguing that the trial court abused its discretion.
Regarding Wife’s appeal, The Appellate Court applied a plenary standard of review to interpretation of the unambiguous provisions of the separation agreement. The Appellate Court relied upon Winthrop v. Winthrop, 189 Conn. App. 576 (2019) in interpreting the meaning of “earned income.” The Winthrop Court defined earned income as the amount shown on defendant’s W-2 form because “the agreement provides that, upon written request from the plaintiff, the defendant is required to produce his paychecks and W-2 and/or 1099’s reflecting earned income…. The inclusion of this provision evinces a clear intent by the parties that income provided on the defendant’s W-2 is his earned income for purposes of ascertaining his additional alimony obligations.” The Winthrop Court further held that, where the definition of earned income was clear and made no reference to deductions, such deductions were irrelevant to calculating alimony.
The Appellate Court applied the Winthrop analysis to Wife’s appeal, reasoning that the separation agreement provided “upon written request from the plaintiff, the defendant is required to produce his paychecks and W-2 and/or 1099’s reflecting earned income.” The Appellate Court reasoned, as it did in Winthrop, that this language unambiguously evinces the same intent by the parties that Husband’s earned income is the amount as reported on his 1099. Thus, the Appellate Court concluded that Husband’s earned income from his 1099 for 2018 was $159,059 and reversed and remanded the matter to determine whether Husband’s failure to pay was willful.
The Appellate Court declined to review Husband’s first two claims on appeal due to an inadequate record, citing Practice Book § 61-10 (a), which provides that it is the responsibility of the appellant to provide an adequate record for review. Husband had failed to order transcripts of the hearings.
Husband’s third claim on appeal was that the trial court improperly ordered him to pay attorney’s fees in connection with Wife’s motions for contempt. The Appellate Court also declined to review whether the attorney’s fees awarded were proper due to inadequate record because, due to Husband’s failure to request the transcripts, it was impossible to ascertain the trial court’s reasoning for the award.
The Appellate Court noted that an affidavit of attorney’s fees is not required in order to provide sufficient evidence of the reasonableness of an award and a trial court may award attorney’s based on any number of factors including general knowledge of the case, sworn affidavits or other testimony, itemized bills, and the like. The Appellate Court also reasoned that an award of attorney’s fees in a contempt proceeding is punitive, not compensatory, so knowledge of exact legal expenses is not required.
The judgment regarding Wife’s October 2019 motions for contempt was affirmed. The judgment denying Wife’s November 2019 motion for was reversed and remanded with direction to conduct a hearing on whether Husband’s failure to pay was willful.