Gabriel v. Gabriel ( 2015 )

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RICHARD P. GABRIEL v. DIANA K. GABRIEL
(AC 36348)
Beach, Mullins and Bishop, Js.
Argued May 21—officially released September 15, 2015
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Stanley Novack, judge trial
referee [dissolution judgment]; S. Richards, J. [motion
for modification; motion for contempt].)
Norman A. Roberts II, with whom, on the brief, was
Anthony L. Cenatiempo, for the appellant (defendant).
Joseph T. O’Conner, for the appellee (plaintiff).
Opinion
MULLINS, J. The defendant, Diana K. Gabriel, appeals
from the judgment of the trial court modifying the unal-
located alimony and support order of the dissolution
court, and denying her motion for contempt filed
against the plaintiff, Richard P. Gabriel. On appeal, the
defendant claims that the court improperly modified
her alimony award and denied her motion for contempt.
We reverse the judgment of the trial court.
The following facts inform our review. The plaintiff
and the defendant were married on July 1, 1995, and
three children were born of the marriage. On April 7,
2011, the court dissolved the parties’ marriage. The
court incorporated the parties’ separation agreement
into its judgment. The parties’ separation agreement
also incorporated a July 21, 2010 parenting plan, in
which the parties agreed to share joint physical and
legal custody of the children, with primary physical
custody also shared. The agreement also provided for
unallocated alimony and support from January 1, 2011,
to December 31, 2015. The alimony was nonmodifiable
by the defendant as to amount and duration. The plain-
tiff, however, had the right to seek a modification of
alimony on the basis of a substantial change in circum-
stances, so long as those circumstances were not based
on the defendant’s cohabitation or an increase in the
defendant’s earnings up to $100,000.
On May 1, 2012, the parties entered into a postjudg-
ment parenting plan because the defendant was relocat-
ing to California, and the plaintiff did not want the
defendant to take the children with her. Pursuant to
this plan, which the court accepted, both parties contin-
ued to share ‘‘joint legal and physical custody of the
minor children,’’ but the children primarily would reside
with the plaintiff in Connecticut. The parenting plan
also granted the defendant liberal visitation, including
either the children’s February or April vacation and
a substantial portion of their summer vacation. The
parenting plan was contingent on the defendant moving
to California and was void if she stayed in Connecticut.
The parenting plan did not address the issue of child
support, and the court did not raise that issue during
the hearing on the parenting plan.
On June 28, 2012, the plaintiff filed a motion for
modification of child support, asserting that ‘‘[t]he
financial circumstances of the parties have changed as
a result of the defendant’s relocation. [The defendant]
no longer has primary residential custody of the chil-
dren and is no longer primarily responsible for their
financial needs. The [plaintiff] now has custody and
primary responsibility for all three minor children.’’ On
October 5, 2012, without permission from the court,
the plaintiff unilaterally decreased his payments to the
defendant from $54,666 per month to $20,000 per
month. In response, the defendant filed a motion for
contempt, alleging that the plaintiff improperly had
engaged in self-help by reducing his unallocated support
payments in violation of the existing orders of the court.
On November 5, 2013, the court granted the plaintiff’s
postjudgment motion for modification of child support,
finding that the parties had stipulated that there had
been a substantial change in circumstances.1 The court
also found that the defendant’s financial needs had been
reduced significantly by her move to California and her
cohabitation with a man who was paying a portion of
her household expenses. Accordingly, the court
reduced the plaintiff’s alimony payments to $20,000 per
month. On the basis of the plaintiff having assumed
primary physical custody of the children, the court,
citing General Statutes § 46b-224,2 also found that the
plaintiff was not in wilful contempt for unilaterally
reducing his unallocated payments to the defendant.
This appeal followed. Additional facts will be set forth
as necessary.
I
The defendant first claims that the court improperly
modified the unallocated award without first determin-
ing the child support portion of the original award. We
conclude that there was error.
‘‘The well settled standard of review in domestic rela-
tions cases is that this court will not disturb trial court
orders unless the trial court has abused its legal discre-
tion or its findings have no reasonable basis in the facts.
. . . 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. . . . Notwithstanding the
great deference accorded the trial court in dissolution
proceedings, a trial court’s ruling . . . may be reversed
if, in the exercise of its discretion, the trial court applies
the wrong standard of law.’’ (Citations omitted; internal
quotation marks omitted.) Nation-Bailey v. Bailey, 144
Conn. App. 319, 330, 74 A.3d 433 (2013), aff’d, 316 Conn.
182, 112 A.3d 144 (2015).
Additionally, ‘‘[i]t is well established that a separation
agreement, incorporated by reference into a judgment
of dissolution, is a contract between the separating
parties. . . . Accordingly, our review of a trial court’s
interpretation of a separation agreement is guided by
the general principles governing the construction of
contracts. . . . If a contract is unambiguous within its
four corners, intent of the parties is a question of law
requiring plenary review. . . . When the language of a
contract is ambiguous, the determination of the parties’
intent is a question of fact, and the trial court’s interpre-
tation is subject to reversal on appeal only if it is clearly
erroneous.’’ (Internal quotation marks omitted.) Saga-
lyn v. Pederson, 140 Conn. App. 792, 795, 60 A.3d 367,
cert. denied, 308 Conn. 930, 64 A.3d 119 (2013).
In this case, the parties entered into a separation
agreement that was incorporated into the court’s judg-
ment dissolving their marriage. Article II, § 2.1 of the
agreement provided in relevant part:
‘‘2.1 Commencing January 1, 2011, the [plaintiff] shall
pay, during his lifetime, to the [defendant], until her
death or remarriage or December 31, 2013, whichever
shall first occur, for her support monthly unallocated
alimony and support as follows:
‘‘The [plaintiff’s] monthly alimony obligation shall be
1/12th of the following amounts
‘‘1) 50 [percent] of earned annual cash income up
to $400,000 ($400,000 x .50 = $200,000/12 = $16,666.66
max) plus
2) 45 [percent] of earned annual cash income between
$400,001 and $800,000 ($400,000 x 45 [percent] =
$180,000/12 = $15,000 max) plus
3) 40 [percent] of earned annual cash income between
$800,000 and $1,500,000 ($700,000 x .40 = $280,000/12 =
$23,333 max).
‘‘The maximum monthly alimony obligation shall be
$54,999, or $660,000 per year. The [defendant] shall
have no claim to the [plaintiff’s] earnings in excess
of $1,500,000.
‘‘Commencing January 1, 2014, the [plaintiff] shall
pay, during his lifetime, to the [defendant], until her
death or remarriage or December 31, 2015, whichever
shall first occur, for her support monthly unallocated
alimony and support as follows:
‘‘The [plaintiff’s] monthly unallocated alimony and
support obligation shall be 1/12th of the following
amounts
‘‘1) 50 [percent] of earned annual cash income up
to $400,000 ($400,000 x .50 = $200,000/12 = $16,666.66
max) plus
2) 45 [percent] of earned annual cash income between
$400,001 and $800,000 ($400,000 x 45 [percent] =
$180,000/12 = $15,000 max) plus
3) 40 [percent] of earned annual cash income between
$800,000 and $1,250,000 ($450,000 x .40 = $180,000/12 =
$15,000 max).
‘‘The maximum monthly unallocated alimony and
support obligation shall be $46,666.66 monthly, or
$560,000 per year. The [defendant] shall have no claim
to the [plaintiff’s] earnings in excess of $1,250,000
. . . .
‘‘The amount of alimony shall be non-modificable as
to both amount and duration by the [defendant], for
any reason.
‘‘The [plaintiff] retains his right to seek a modification
of alimony based upon a substantial change of circum-
stances. The foregoing notwithstanding, for so long as
he is paying alimony in accordance with the above
percentages, the [plaintiff] waives the right to seek to
modify the [defendant’s] alimony based upon her cohab-
itation. He further waives the right to seek a modifica-
tion of this alimony obligation based solely upon the
[defendant’s] earnings, so long as her earnings do not
exceed $100,000 per annum.’’3
Accordingly, the terms of the agreement, as it relates
to the unallocated alimony and support payments, are
unambiguous. The agreement clearly states that the
unallocated alimony and support payments are ‘‘for her
support’’ and are nonmodifiable by the defendant as to
both amount and duration, but are modifiable by the
plaintiff upon a substantial change in circumstances,
not including the defendant’s cohabitation or her earn-
ings up to $100,000. Indeed, the plaintiff concedes that
the agreement clearly prohibits him from moving to
modify the agreement on the basis of the defendant’s
cohabitation. He argues, however, that the court was
free to consider the defendant’s cohabitation in render-
ing its new orders. We disagree.
The plaintiff in this case filed a postjudgment motion
for modification, requesting ‘‘an order from the court
for a modification of his child support payments due
to a substantial change of circumstances.’’ (Emphasis
added.) The plaintiff claimed that the change in the
children’s residence affected the parties’ financial cir-
cumstances. The court, after taking into consideration
that the defendant now was cohabitating with a man
who was paying a substantial portion of her household
expenses, modified the plaintiff’s alimony obligation
to the $20,000 monthly amount to which the plaintiff
unilaterally had reduced it.4 The court made no findings
on the record, however, regarding child support. The
court also never indicated that it had broken down
the components of the original order before modifying
the award.5
Our Supreme Court has ‘‘interpreted [General Stat-
utes § 46b-86 (a)] generally to [provide] the trial court
with continuing jurisdiction to modify support orders
after the date of a final judgment of dissolution. . . .
It permits the court to modify alimony and child support
orders if the circumstances demonstrate that: (1) either
of the parties’ circumstances have substantially
changed; or (2) the final order of child support substan-
tially deviates from the child support guidelines. The
statute, however, expressly stipulates that the court
may exercise this authority [u]nless and to the extent
that the decree precludes modification . . . . Thus, by
its terms, § 46b-86 (a) clearly contemplates that, in cer-
tain cases, the parties can, by agreement, restrict the
trial court’s power to modify alimony or support even
when a substantial change in circumstances or a sub-
stantial deviation from the child support guidelines has
occurred. . . . Indeed, with respect to alimony, we
have held that unambiguous provisions precluding
modification of alimony are enforceable pursuant to
the language of § 46b-86 (a).’’ (Citations omitted;
emphasis added; internal quotation marks omitted.)
Tomlinson v. Tomlinson, 305 Conn. 539, 547–48, 46
A.3d 112 (2012).
The parties’ agreement clearly prohibits a modifica-
tion of alimony on the basis of the defendant’s cohabita-
tion or an increase in her income, unless that increase
is more than $100,000. The plaintiff moved to modify
his child support obligation on the basis of a change
in custody of the children, which, clearly, is permissible
under the agreement. A factor not to be considered in
modifying the unallocated award, however, was the
cohabitation of the defendant. To permit the court to
use this factor to lower the amount of alimony to which
the defendant is entitled by virtue of the parties’
agreement would eviscerate the clear language and
intent of the agreement.
Here, the unallocated order clearly incorporates both
alimony and child support without specifying amounts
for each component. Each component serves a different
function. See Loughlin v. Loughlin, 280 Conn. 632, 655–
56, 910 A.2d 963 (2006) (child support and alimony serve
distinct purposes and one must not be used to disguise
other). ‘‘[C]hild support orders must be based on the
statutory criteria enumerated in . . . § 46b-84 of which
the most important is the needs of the child . . . .
[S]upport award[s] may not be used to disguise alimony
awards to the custodial parent. . . . Other courts have
similarly noted that guidelines and percentages used
without limitation are unrealistic and unfair when both
parents have substantial incomes. . . . When a parent
has an ability to pay a large amount of support, the
determination of a child’s needs can be generous, but
all any parent should be required to pay, regardless of
his or her ability, is a fair share of the amount actually
necessary to maintain the child in a reasonable standard
of living. Court-ordered support that is more than rea-
sonably needed for the child becomes, in fact, [tax
free] alimony.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) Maturo v. Maturo,
296 Conn. 80, 105–106, 995 A.2d 1 (2010).
Our Supreme Court instructed in Tomlinson:
‘‘Because the child support portion of an otherwise
nonmodifiable award can be modified upon a change
in custody . . . but the alimony portion cannot, a trial
court must determine what part of the original decree
constituted modifiable child support and what part con-
stituted nonmodifiable alimony.’’ Tomlinson v. Tomlin-
son, supra, 305 Conn. 558. In the present case, although
the parties’ agreement permitted the plaintiff to seek a
modification of the unallocated award on the basis of
a substantial change in circumstances, the change in
the custody being the ground alleged in the motion, the
only aspect of the award that he sought to modify on
the face of his motion was his child support order.
Moreover, even if we were to read the motion broadly
to include the alimony order, it is not clear how the
change in the children’s residence had an effect on the
alimony portion of the agreement. ‘‘The court has the
authority to issue a modification only if it conforms
the order to the distinct and definite changes in the
circumstances of the parties.’’ (Internal quotation
marks omitted.) Hane v. Hane, 158 Conn. App. 167,
173, A.3d (2015).
Furthermore, there is no indication that the court
determined or considered the amount of child support
from the original orders and the amount allocated to
alimony. Before the court could consider a change to
the child support portion of the unallocated support
order, it, necessarily, had to determine the original
amount of child support and the appropriate amount
of current child support under the child support
guidelines.
Indeed, ‘‘[g]iven that [t]he original decree [of dissolu-
tion] . . . is an adjudication by the trial court as to
what is right and proper at the time it is entered . . .
the trial court must first determine what portion of
the unallocated order represented the child support
component at the time of the dissolution. Additionally,
because questions involving modification of alimony
and support depend . . . on conditions as they exist
at the time of the hearing . . . it is necessary to evalu-
ate the parties’ present circumstances in light of the
passage of time since the trial court’s original calcu-
lation.
‘‘In entering an initial support order during the disso-
lution proceeding, a trial court must calculate the mini-
mum amount of child support required by the
guidelines, and it may deviate from such amount only
upon [a] specific finding on the record that the applica-
tion of the guidelines would be inequitable or inappro-
priate in a particular case, as determined under criteria
established by the [Commission for Child Support
Guidelines] under [General Statutes §] 46b-215a. . . .
Any such finding shall include the amount required
under the guidelines and the court’s justification for
the deviation, which must be based on the guidelines’
[c]riteria for deviation . . . . The deviation criteria
include, inter alia, the coordination of total family sup-
port, shared physical custody, extraordinary disparity
in parental income and the best interests of the child.
. . . The coordination of total family support criterion
allows the trial court to deviate from the presumptive
support amount calculated pursuant to the guidelines
upon consideration of the (A) division of assets and
liabilities, (B) provision of alimony, and (C) tax planning
considerations . . . [w]hen such considerations will
not result in a lesser economic benefit to the child
. . . .’’ (Citations omitted; emphasis omitted; internal
quotation marks omitted.) Tomlinson v. Tomlinson,
supra, 305 Conn. 558–59.
‘‘In modifying the support order in a subsequent pro-
ceeding, a trial court may consider the same factors
applied in the initial determination to assess any
changes in the parties’ circumstances since the last
court order. . . . [General Statutes §] 46b-215b (c)
mandates that the guidelines shall be considered in
addition to and not in lieu of the criteria for such awards
established in [General Statutes §§] 46b-84 [and] 46b-86
and other [relevant] statutes . . . .’’ (Citations omitted;
emphasis added; internal quotation marks omitted.)
Id., 559.
In this case, the parties had an agreement for the
unallocated support of the children and the defendant.
The alimony portion of the agreement was nonmodifi-
able on the ground of cohabitation. After the parties
agreed that the children would reside primarily with
the plaintiff, rather than spend 50 percent of their time
with him, but specifically stipulated that both parties
retained ‘‘joint legal and physical custody,’’ the plaintiff
sought to modify his child support obligation. The court
failed to consider what portion of the original award
went to child support and what portion went to alimony.
There also is no indication that it considered the child
support guidelines when fashioning the new award.
Additionally, in contravention of the parties’ clear
agreement, the court focused on the fact of the defen-
dant’s cohabitation in modifying the alimony portion
of the unallocated award. Accordingly, the judgment of
the court must be reversed and the matter remanded
for a new hearing.
II
The defendant also claims that the court abused its
discretion when it denied her motion for contempt. We
disagree with the court’s analysis of this issue and,
therefore, reverse the judgment and remand the matter
for reconsideration.
We begin with general principles regarding civil con-
tempt and the applicable standards of review. ‘‘Con-
tempt is a disobedience to the rules and orders of a
court which has power to punish for such an offense.
. . . A contempt judgment cannot stand when, inter
alia, the order a contemnor is held to have violated is
vague and indefinite, or when the contemnor, through
no fault of his own, was unable to obey the court’s
order. . . . Consistent with the foregoing, when we
review such a judgment, we first consider 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. . . .
‘‘Second, if we conclude that the underlying court
order was sufficiently clear and unambiguous, we must
then determine whether the trial court abused its discre-
tion in issuing, or refusing to issue, a judgment of con-
tempt, which includes a review of the trial court’s
determination of whether the violation was wilful or
excused by a good faith dispute or misunderstanding.’’
(Citations omitted; internal quotation marks omitted.)
Parisi v. Parisi, 315 Conn. 370, 379–80, 107 A.3d 920
(2015).
We begin by considering whether the parties’
agreement is sufficiently clear and unambiguous. Nei-
ther party argues that the agreement was not clear or
that it contained any ambiguity, nor did the court find
the agreement to be ambiguous. Following our own
review of the agreement, we also conclude that it is
clear and unambiguous.
‘‘Civil contempt is committed when a person violates
an order of court which requires that person in specific
and definite language to do or refrain from doing an
act or series of acts . . . . Whether an order is suffi-
ciently clear and unambiguous is a necessary prerequi-
site for a finding of contempt because [t]he contempt
remedy is particularly harsh . . . and may be founded
solely upon some clear and express direction of the
court. . . . One cannot be placed in contempt for fail-
ure to read the court’s mind. . . . This is a long-stand-
ing tenet of the law of contempt. . . . It is also logically
sound that a person must not be found in contempt of a
court order when ambiguity either renders compliance
with the order impossible, because it is not clear enough
to put a reasonable person on notice of what is required
for compliance, or makes the order susceptible to a
court’s arbitrary interpretation of whether a party is in
compliance with the order.’’ (Citations omitted; empha-
sis omitted; internal quotation marks omitted.) In re
Leah S., 284 Conn. 685, 695, 935 A.2d 1021 (2007).
In the present case, the court specifically found:
‘‘[a]lthough the defendant provided the court with evi-
dence that there was a clear and unambiguous order
in effect obligating the plaintiff to pay the defendant
unallocated alimony and child support, and that the
plaintiff failed to comply with said order by modifying
the order on October 1, 2012, without permission of
the court, the court finds the plaintiff had a reasonable
excuse that is supported by the ambit of the statutory
framework set forth in § 46b-224.’’ The court deter-
mined that because § 46b-224 suspends child support
payments ‘‘by operation of law,’’ the plaintiff did not
engage in self-help or act wilfully when he failed to
comply with the existing orders of the court. We cannot
agree with the court’s reasoning.
Section 46b-224 provides, in relevant part, that when
‘‘the Superior Court, in a family relations matter . . .
orders a change or transfer of . . . custody of a child
who is the subject of a preexisting support order, and
the court makes no finding with respect to such support
order, such . . . custody order shall operate to . . .
[s]uspend the support order if . . . custody is trans-
ferred to the obligor under the support order . . . .’’
The statute applies when there is a change in custody.
Here, the parties’ supplemental parenting agreement
specifically stated that both parties continued to share
‘‘joint legal and physical custody of the minor children,’’
and that ‘‘[t]he children shall primarily reside with the
[plaintiff] . . . .’’ Because the plaintiff acquired pri-
mary physical custody of the children, we agree that
the statute was applicable. Section 46b-224, however,
only speaks to child support, and it certainly would not
give a party the right to suspend his alimony obligation.
Under the circumstances of this case, it is clear from
the court’s memorandum of decision that the court
reduced the defendant’s alimony award and the child
support award in the combined total of the plaintiff’s
unilateral reduction. This demonstrates that the plain-
tiff’s unilateral reduction, in the opinion of the trial
court, was not solely in the amount of his court ordered
child support. In other words, relying on § 46b-224, the
court found it was not contemptuous for the plaintiff
to have suspended some portion of the defendant’s
alimony award. We conclude that this was an improper
reliance on § 46b-224.
We further conclude that the statute, alone, does
not give a party the right or an excuse to suspend an
unallocated support obligation.6 Because we disagree
with the court’s analysis of this issue, we remand the
matter for reconsideration of the defendant’s motion
for contempt.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
The plaintiff contends that the ‘‘parties stipulated that there was a sub-
stantial change in the financial circumstances of the parties,’’ but he points
only to the court’s memorandum of decision. Although the court did state
that the parties stipulated that there had been a substantial change in circum-
stances, it did not state that such a change was financial. Our review of the
record reveals that the defendant conceded that the children’s change of
residence was a substantial change in circumstances. We are unable to find
any stipulation by the defendant that there was a substantial change in the
financial circumstances of the parties.
2
General Statutes § 46b-224 provides in relevant part: ‘‘Whenever . . .
the Superior Court, in a family relations matter, as defined in section 46b-
1, orders a change or transfer of . . . custody of a child who is the subject
of a preexisting support order, and the court makes no finding with respect
to such support order, such . . . custody order shall operate to: (1) Suspend
the support order if . . . custody is transferred to the obligor under the
support order; or (2) modify the payee of the support order to be the person
or entity awarded . . . custody of the child by the court, if such person or
entity is other than the obligor under the support order.’’
3
During the dissolution proceedings, the plaintiff acknowledged that the
agreement intentionally made the dollar amount of the spousal support
payments higher because the term was so limited:
‘‘[The Plaintiff’s Attorney]: All right. Now, I had several discussions with
you concerning the terms of this agreement, and I’m not going to go into
it in any great detail, but I indicate that if this case was tried, it was highly
unlikely that a court would order you to pay the amount of alimony and
support that is called for in this agreement. I told you that?
‘‘[The Plaintiff]: Yes, you have.
‘‘[The Plaintiff’s Attorney]: I also told you it was highly unlikely that a court
would order the term of alimony as short as it is in this agreement, correct?
‘‘[The Plaintiff]: Yes.
‘‘[The Plaintiff’s Attorney]: So, basically, you’re paying more money for
a less period of time than what I think would happen if you tried the case,
which would be less money but for a longer period of time?
‘‘[The Plaintiff]: Yes.’’
4
The plaintiff’s original unallocated support payment was approximately
$54,000 per month, which he unilaterally reduced to $20,000 per month, a
reduction of approximately $34,000 per month. The plaintiff testified, how-
ever, that after the children came to reside with him essentially full-time
rather than half-time, his monthly expenses, excluding payments to the
defendant, went from $26,435.40 in 2011, to $42,574 in 2013. He stated that
the approximate $16,000 increase in his expenses was due to the care of
the children. He also testified that because of his tax bracket, he needed
approximately $32,000 in income to make up that $16,000 increase. The
court specifically found that many of the plaintiff’s claimed expenses lacked
credibility. Nevertheless, the court reduced the plaintiff’s payments to the
defendant by approximately $34,000.
5
The court specifically held that Tomlinson v. Tomlinson, 305 Conn. 539,
46 A.3d 112 (2012), was not applicable. We do not agree.
6
We need not determine whether a party would have the right to suspend
the child support portion of an unallocated award if the original dissolution
court had indicated the child support portion of such award, although specifi-
cally ordering that the total award was unallocated.