Giordano v. Giordano ( 2014 )

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RENEE GIORDANO v. CARL V. GIORDANO
(AC 35415)
Beach, Sheldon and Norcott, Js.
Argued May 21—officially released October 7, 2014
(Appeal from Superior Court, judicial district of
Hartford, Solomon, J. [dissolution judgment];
Westbrook, J. [motion for contempt, motion for
modification].)
John F. Morris, for the appellant (defendant).
Kathleen M. Grover, for the appellee (plaintiff).
Opinion
BEACH, J. The defendant, Carl V. Giordano, appeals
from the trial court’s rulings on various postjudgment
motions. He claims that the court erred in (1) granting
the motion for contempt filed by the plaintiff, Renee
Giordano, (2) awarding the plaintiff attorney’s fees in
connection with her motion for contempt, and (3) calcu-
lating its modification of child support. We affirm the
judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. The parties were married in 1992.
Two children were born of the marriage. In 2004, the
plaintiff filed for divorce. In October, 2005, the court
entered a judgment of dissolution that incorporated
into the judgment a separation agreement that had been
entered into by the parties.
The resolution of the defendant’s appeal requires an
examination of a postjudgment agreement that was
entered into following a prior appeal. See Giordano v.
Giordano, 127 Conn. App. 498, 14 A.3d 1058 (2011).
The following facts were recited in the course of our
decision in the prior appeal. The defendant was a 50
percent shareholder in businesses owning real property
in East Hartford. Id., 500. Under the settlement
agreement, which was incorporated into the dissolution
judgment, the defendant was to pay the plaintiff
$425,000 in various installments over ten years in
exchange for retaining his ownership interests in the
East Hartford properties. Id. Article VI of this agreement
provided in part that ‘‘ ‘[i]f the [defendant] sells, trans-
fers or otherwise divests himself of any of his interest
in [the East Hartford properties], he shall immediately
pay the [plaintiff] any funds due her at that time so that
she is paid in full.’ ’’ Id. The defendant and his business
partner sold the East Hartford properties via a ‘‘ ‘like-
kind’ ’’ exchange for a net profit of approximately $4.1
million. Id., 500–501. In order to avoid certain tax liabili-
ties for like-kind exchanges, the net proceeds of the
sale were transferred to a third party intermediary,
LandAmerica 1031 Exchange Services, Inc., which was
a subsidiary of LandAmerica Financial Group, Inc.
(LandAmerica). Id., 501. The defendant and his business
partner sought to utilize the net proceeds from the sale
to purchase new properties, but before they could do
so, LandAmerica declared bankruptcy. Id. Thus, the
defendant’s attempted like-kind exchange was not pos-
sible. Id. The defendant and his business partner
became creditors of the LandAmerica bankruptcy
estate. Id.
The plaintiff filed a postjudgment motion for con-
tempt seeking full payment of the outstanding property
settlement, arguing that the like-kind exchange of the
East Hartford properties triggered the defendant’s pay-
ment obligation under article VI of the agreement. Id.
The trial court granted the plaintiff’s motion for con-
tempt, and concluded that the defendant wilfully had
violated the unambiguous provisions of article VI by
not paying the plaintiff in full at the time of the
exchange. Id., 502. On appeal, the defendant claimed
that the trial court improperly had granted the plaintiff’s
postjudgment motion for contempt, erred in determin-
ing that article VI was unambiguous, and, alternatively,
erred in concluding that he was in wilful contempt.
Id. This court concluded that the trial court properly
determined that the provision of the agreement con-
cerning the defendant’s payment obligation was unam-
biguous in the context of the like-kind exchange of the
properties, that article VI was triggered because the
defendant had sold the properties, and that the trial
court did not err in finding the defendant in contempt
for failure to pay the plaintiff in accordance with article
VI. Id., 503–507.
Following the release of our decision in Giordano v.
Giordano, supra, 127 Conn. App. 498, the parties
entered into an agreement ‘‘settling all of the claims
and demands . . . as it relates to the property settle-
ment.’’ The agreement was entered as an order of the
court on June 1, 2011 (June, 2011 order). Paragraph 3
of the June, 2011 order, entitled ‘‘transfers,’’ stated in
a preliminary paragraph that ‘‘[t]he defendant intends
to transfer to his business partner any interest he may
have in the real property known as 160 Bridge Street,
East Windsor . . . .’’ Paragraph 3 (a) provided that at
the time of that transfer, the corporate purchaser shall
pay $175,000 to the plaintiff and $25,000 to the defen-
dant. Paragraph 3 (b) provided that, in addition to the
payment in paragraph 3 (a), the defendant shall pay to
the plaintiff $175,000 as lump sum alimony, and set
forth a payment schedule. Under paragraph 3 (c), the
defendant was to pay the plaintiff 50 percent of any
‘‘additional’’ moneys received from the ‘‘transfer of his
business interests’’ toward the $175,000 lump sum ali-
mony. Paragraph 3 (d) stated that ‘‘[s]hould the defen-
dant receive any future [moneys] from the LandAmerica
bankruptcy or from any future . . . litigation as
regards the LandAmerica issues he shall apply 50 [per-
cent] of any net sums he receives towards any unpaid
part of the lump sum alimony . . . .’’ Under paragraph
3 (e), the defendant was to arrange to provide the plain-
tiff with a notice of receipt if he received any sums due
under paragraphs (c) or (d).
On June 20, 2012, the plaintiff filed a motion for
contempt, stating that the defendant had not complied
with the June, 2011 order because he had received mon-
eys from the LandAmerica bankruptcy, but had not paid
her 50 percent of the net proceeds. Pursuant to a court
order, the defendant deposited $12,090 in escrow,
which represented part of the money he had received
from the LandAmerica bankruptcy proceedings.1 On
January 7, 2013, an evidentiary hearing was held on the
motion for contempt. The court granted the motion,
ordered that the $12,090 held in escrow be released to
the plaintiff, and awarded the plaintiff $421.71 in costs
and $6577.07 in attorney’s fees. On February 7, 2013,
the court sua sponte issued the following clarification:
‘‘The court issued an oral decision [on January 7, 2013]
finding the defendant in contempt and directing twelve
thousand and ninety dollars ($12,090) being held in
escrow by the plaintiff’s counsel be released. The
$12,090 is 50 [percent] of the gross funds in dispute.
According to the [June, 2011 order] the plaintiff is enti-
tled to 50 [percent] of the net amount received by the
defendant. As such the court orders that only the net
portion of the $12,090 shall be released to the plaintiff.’’
The defendant filed a motion for modification of child
support as a result of one of the parties’ two children
attaining the age of majority. The court granted the
defendant’s motion for a downward modification, and
in doing so relied on the plaintiff’s child support guide-
lines worksheet. The defendant filed the present appeal
prior to the court’s granting of his motion for modifica-
tion, but later amended the appeal to include a claim
that the court erred in calculating the downward modifi-
cation.
I
The defendant first claims that the court erred in
granting the plaintiff’s June, 2012 motion for contempt.
We disagree.
‘‘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; internal quotation marks omitted.) In re Leah
S., 284 Conn. 685, 693–94, 935 A.2d 1021 (2007).
A
The defendant’s first argument regarding the motion
for contempt essentially concerns the first inquiry in
our analysis of a judgment of contempt—whether the
underlying order found to have been violated (June,
2011 order) was clear and unambiguous. He argues that
the court erred in interpreting the June, 2011 order to
apply in the present situation when, in fact, the plaintiff
was not clearly entitled to the $12,090 from the LandAm-
erica bankruptcy under paragraph 3 of that order. He
discusses paragraphs 3 (c) and (d) and argues that
neither paragraph applies. He contends that paragraph
3 (c) does not apply because the moneys he received
from the LandAmerica bankruptcy are not ‘‘additional’’
moneys as contemplated by paragraph 3 (c), but, rather,
are the exact amount of moneys he was permitted to
retain pursuant to a purchase and sales agreement. He
also argues that paragraph 3 (d) does not apply because
‘‘only the companies are the beneficiaries of any [mon-
eys] from the LandAmerica bankruptcy, not the defen-
dant.’’ We are not persuaded that the court erred in
concluding that the June, 2011 order clearly and unam-
biguously required the defendant to pay the moneys at
issue to the plaintiff.
Paragraphs 3 (c) and (d) of the June, 2011 order
are clear and unambiguous. Paragraph 3 (c) clearly
provides that the defendant was to pay the plaintiff 50
percent of any ‘‘additional’’ moneys received from the
‘‘transfer of his business interests’’ toward the $175,000
lump sum alimony. Paragraph 3 (d) provides that
‘‘[s]hould the defendant receive any future [moneys]
from the LandAmerica bankruptcy . . . litigation . . .
he shall apply 50 [percent] of any net sums he receives
towards any unpaid part of the lump sum alimony
described hereinbefore, with one week of his receipt.’’
Paragraph 3 (d) clearly and unambiguously provides
that the defendant shall apply 50 percent of any moneys
received from the LandAmerica bankruptcy toward any
unpaid alimony. It makes no difference if funds were
funneled through a corporate entity.
In her June, 2012 motion for contempt, the plaintiff
argued that the defendant had not complied with the
June, 2011 order because he had received moneys, but
had not paid her 50 percent of the net proceeds. The
court found, after an evidentiary hearing, that the
$12,090 held in escrow was 50 percent of the gross
funds in dispute, and that under the June, 2011 order,
the plaintiff was entitled to the $12,090.
The defendant cannot prevail on his argument that
the plaintiff was not entitled to $12,090 under paragraph
3 (c) of the June, 2011 order because the moneys
received were not ‘‘additional’’ or under paragraph 3
(d), because the $12,090 was received by the companies,
and not himself. In its order, the court did not clearly
specify whether it had found that the defendant violated
paragraph 3 (c) or paragraph 3 (d), both of which were
referenced by the plaintiff’s counsel in her final argu-
ment. The paragraphs, however, are unambiguous, and
we cannot conclude on the record before us that the
court erred in concluding either that the moneys
received were ‘‘additional’’ or whether they were
received by the defendant.2
The record contains a partial transcript of the January
7, 2013 hearing. Although the transcript appears to pick
up in midstream, we note that, in the excerpt provided,
the defendant testified that he was owed moneys from
the LandAmerica bankruptcy, which funds were being
repaid back to him slowly. He also testified that he had
received ‘‘additional funds’’ from LandAmerica. Two
checks, payable to the defendant in the amounts of
$15,717 and $8463—50 percent of which combined
amount is $12,090—were submitted into evidence. We
conclude that the court did not err in interpreting and
applying the June, 2011 order.
B
The defendant next argues that the court erred in
granting the plaintiff’s June, 2012 motion for contempt
because his nonpayment was not wilful; rather, he
claims that he genuinely believed that he had no obliga-
tion to share the moneys with the plaintiff. We are
not persuaded.
In its January 7, 2013 decision on the plaintiff’s
motion for contempt, the court found that the defendant
wilfully failed to comply with the June, 2011 order. The
court noted that he had not provided the plaintiff with
notice that he had received the funds, nor had he paid
the plaintiff 50 percent of moneys that he had received
from the LandAmerica bankruptcy. After an evidentiary
hearing, the court found that the defendant had the
ability to pay, but wilfully had failed to do so.
On the record provided to us, we cannot conclude
that the court’s finding of wilfulness was clearly errone-
ous. The defendant testified that he had received addi-
tional funds from LandAmerica and funds from the
LandAmerica bankruptcy were being paid back to him.
From this evidence, the court could have concluded
that the defendant had available funds. Further, the
court could have found that the defendant was aware
of the June, 2011 order because he, along with the
plaintiff, had entered into the unambiguous agreement
on May 5, 2011, which was later adopted by and became
an order of the court on June 1, 2011.
Moreover, the defendant cannot prevail on his argu-
ment that the existence of a good faith dispute pre-
vented a finding of contempt. ‘‘A good faith dispute or
legitimate misunderstanding of the terms of an alimony
or support obligation may prevent a finding that the
payor’s nonpayment was wilful. This does not mean,
however, that such a dispute or misunderstanding will
preclude a finding of wilfulness as a predicate to a
judgment of contempt. Whether it will preclude such a
finding is ultimately within the trial court’s discretion.’’
(Internal quotation marks omitted.) Giordano v. Gior-
dano, supra, 127 Conn. App. 506. We cannot conclude
that the court abused its discretion in concluding that
the defendant wilfully violated the June, 2011 order
despite the defendant’s argument of a good faith misun-
derstanding.
II
The defendant next claims that the court erred in its
award of attorney’s fees. We disagree.
The court stated, in granting the plaintiff’s motion
for attorney’s fees in connection with her motion for
contempt, that it did so pursuant to both General Stat-
utes § 46b-87, which permits the recovery of attorney’s
fees following findings of contempt, and the separation
agreement, which permits recovery of attorney’s fees
in the event of noncompliance.
‘‘The general rule of law known as the American
rule is that attorney’s fees and ordinary expenses and
burdens of litigation are not allowed to the successful
party absent a contractual or statutory exception. . . .
This rule is generally followed throughout the country.
. . . Connecticut adheres to the American rule. . . .
There are few exceptions. For example, a specific con-
tractual term may provide for the recovery of attorney’s
fees and costs . . . or a statute may confer such
rights.’’ (Internal quotation marks omitted.) ACMAT
Corp. v. Greater New York Mutual Ins. Co., 282 Conn.
576, 582, 923 A.2d 697 (2007).
The standard typically employed in a review of an
award of attorney’s fees is abuse of discretion. See, e.g.,
Broadnax v. New Haven, 270 Conn. 133, 178, 851 A.2d
1113 (2004). The defendant’s claim, however, requires
us to review the language of the the separation
agreement itself and the June, 2011 order, which was
an agreement by the parties to modify a portion of the
separation agreement. Both the separation agreement
and its stipulated to subsequent modification are con-
strued as contracts. ‘‘Because a stipulation is consid-
ered a contract, [o]ur interpretation of a separation
agreement that is incorporated into a dissolution decree
is guided by the general principles governing the con-
struction of contracts. . . . Thus, if there is definitive
contract language, the determination of what the parties
intended by their . . . commitments is a question of
law [over which our review is plenary].’’ (Citation omit-
ted; internal quotation marks omitted.) Ahmadi v.
Ahmadi, 294 Conn. 384, 390, 985 A.2d 319 (2009).
In this case, there is obviously statutory authority to
award attorney’s fees. Section 46b-87 provides that a
trial court may, in the exercise of its discretion, award
attorney’s fees to the prevailing party in a contempt
proceeding. Our plenary review of the agreements
between the parties reveals that, at the very least, there
was no contractual prohibition against awarding attor-
ney’s fees. We need not reach, then, the issue of whether
the agreements positively authorized the award of attor-
ney’s fees.3
The defendant argues that paragraph 7 of the June,
2011 order barred the plaintiff from recovering attor-
ney’s fees. Paragraph 7 provides: ‘‘Said payments [pro-
vided for in paragraph 3] to the plaintiff from the
corporation and as future alimony represent complete
payment on the property settlement portions of the
judgment as outlined in the judgment of dissolution,
article VI. Said payments are in complete and final pay-
ment of all claims owed by the defendant to the plaintiff
pursuant to the judgment of dissolution and any subse-
quent or related court orders, including contempt
claims, weekly payments, interest, attorney’s fees or the
like, without exception, as may relate to the property
settlement. Upon receipt of the initial $175,000 sum,
the plaintiff shall immediately return to the defendant
the originals of all stock certificates held by her, and
shall execute a release of all claims against the defen-
dant under the judgment and all subsequent orders as
relates to the property settlement to date. The [plaintiff]
hereby waives and relinquishes any and all claims that
she may have to any other property settlement claims,
now and in the future, whether in the form of a property
settlement, and/or any claims howsoever related to any
interest in the defendant’s business, any future claims,
[moneys], damages, or any proceeds from said business
interests except as provided herein.’’ The defendant
contends that, because the award of attorney’s fees
directly relates to her claims regarding proceeds from
his business interests, her recovery of attorney’s fees
is barred by paragraph 7.
Under paragraph 7 of the June, 2011 order, the plain-
tiff relinquished all property settlement claims and
claims related to any interest in the defendant’s busi-
ness upon payment of the agreed upon sums. Addition-
ally, paragraph 12 makes clear that the agreement
settled all claims that the plaintiff may have had under
the property settlement provisions of the separation
agreement. Paragraph 12 provides: ‘‘It is the intention
of the parties that henceforth this agreement shall act
as a substitute for all property settlement claims of the
judgment in any matters between them.’’
The June, 2011 order, of course, contemplates that
the required payments will be made; those payments
were to be made as consideration for the past settle-
ment obligation and any potential claims arising there-
under, including attorney’s fees. The order logically
does not address the situation where payments are not
made. The only reasonable interpretation is that the
language describing all ‘‘subsequent’’ claims for con-
tempt, attorney’s fees, and the like refers to claims
accruing after the dissolution judgment until the execu-
tion of the June, 2011 order;4 any such claim was consid-
ered to be to be covered by the payments contemplated
in paragraph 3. The plaintiff also waived any additional
claim she may have had as to the defendant’s business
interests. Neither provision barred attorney’s fees aris-
ing out of contempt claims occurring after the execu-
tion of the June, 2011 order. See, e.g., Lawrence
Brunoli, Inc. v. Branford, 247 Conn. 407, 414 n.4, 722
A.2d 271 (1999) (bizarre results to be avoided in con-
tract interpretation); see also Creatura v. Creatura, 122
Conn. App. 47, 55–56, 998 A.2d 798 (2010) (effect given
to every contract provision in order to reach overall
reasonable result; individual contract clauses not to be
construed by taking them out of context).
III
The defendant last claims that the court erred in its
modification of child support because it relied on an
erroneous child support guideline worksheet. We
disagree.
‘‘The standard of review in family matters is well
settled. An appellate court will not disturb a trial court’s
orders in domestic relations cases unless the court has
abused its discretion or it is found that it could not
reasonably conclude as it did, based on the facts pre-
sented. . . . In determining whether a trial court has
abused its broad discretion in domestic relations mat-
ters, we allow every reasonable presumption in favor
of the correctness of its action. . . . Appellate review
of a trial court’s findings of fact is governed by the
clearly erroneous standard of review. The trial court’s
findings are binding upon this court unless they are
clearly erroneous in light of the evidence and the plead-
ings in the record as a whole. . . . A finding of fact is
clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Internal quotation
marks omitted.) Weinstein v. Weinstein, 104 Conn.
App. 482, 487–88, 934 A.2d 306 (2007), cert. denied, 285
Conn. 911, 943 A.2d 472 (2008).
‘‘The [child support] guidelines worksheet is based
on net income; weekly gross income is listed on the
first line on the worksheet, and the subsequent lines
list various deductions, including federal income tax
withheld and social security tax. . . . The guidelines
are used by the court to determine a presumptive child
support payment, which is to be deviated from only
under extraordinary circumstances.’’ (Citation omitted;
internal quotation marks omitted.) Golden v. Mandel,
110 Conn. App. 376, 386, 955 A.2d 115 (2008). Our regula-
tions define ‘‘gross income’’ as ‘‘the average weekly
earned and unearned income from all sources before
deductions, including but not limited to the items listed
in subparagraph (A) of this subdivision, but excluding
the items listed in subparagraph (B) of this subdivision.’’
Regs., Conn. State Agencies § 46b-215a-1 (11).
The defendant filed a motion for modification of child
support dated January 7, 2013, on the ground that the
elder of the parties’ two children had attained the age
of majority and only one child remained a minor. Evi-
dentiary hearings were held on February 1 and June
18, 2013. The plaintiff submitted into evidence a child
support guidelines worksheet listing her weekly gross
income as $464 and the presumptive current support
amount as $193 per week. The court granted the defen-
dant’s motion for modification, and reduced the defen-
dant’s weekly child support payments from $228 to
$193, retroactive to January 7, 2013.
The defendant argues that the court erred in
accepting the plaintiff’s child support guidelines work-
sheet as credible because that worksheet stated an
incorrect amount for gross income that was different
from the amount stated on the plaintiff’s financial affida-
vit. The court considered evidence on the issue of child
support, and we have not been presented with a coher-
ent claim that the finding is not supported by sufficient
evidence. On the record before us, we cannot conclude
that the court abused its discretion in finding credible
the plaintiff’s calculation of her gross income on her
child support guidelines worksheet.
The defendant also argues that ‘‘none of [the plain-
tiff’s] stated deductions on her worksheet matched
those described on her financial affidavit and on exhibit
B [the plaintiff’s 2012 W-2 form], thus relying on wrong
deductions for the worksheet analysis.’’ The defendant
does not offer any additional analysis, beyond this sen-
tence, of why the deductions are incorrect. We are
unable to conclude that the court abused its discretion
in accepting the deductions taken by the plaintiff on
her child support guidelines worksheet.
The defendant finally argues that the plaintiff incor-
rectly calculated the defendant’s tax liability on her
child support guidelines worksheet because, at the
hearing on the motion for modification, her counsel
repeatedly objected to the evidence submitted by the
defendant’s counsel as to his tax liability, claiming it
was hearsay. Yet, the defendant argues, the plaintiff
calculated the defendant’s tax liability using a computer
program, which calculations were hearsay. The defen-
dant is taking issue with the actions at the hearing of
the plaintiff’s counsel, which are not reviewable in this
appeal. To the extent that the defendant is claiming
that the court erred in failing to admit into evidence his
calculations of his tax liability and improperly admitted
into evidence the plaintiff’s calculations, the defendant
does not direct our attention to any specific rulings
by the court regarding the admissibility of tax liability
evidence with respect to either party. Thus, we are
unable to review the claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
It appears that $12,090 was half of the distribution received by the
defendant from the bankruptcy proceedings.
2
Even if the parties intended paragraph 3 (c) of the June, 2011 order to
apply to transactions not involving LandAmerica, there can be no question
that paragraph 3 (d) applied to such transactions.
3
We also need not address, sua sponte, the issue of whether the statutory
authorization of attorney’s fees, in the discretion of the court, lawfully can
be limited by contractual agreement.
4
Significantly, the language relied on by the defendant would, if applied
in the manner suggested by the defendant, bar payment with respect to
contempt claims accruing at any time in the indefinite future. Language
severely limiting the enforceability of an agreement, incorporated into a
court order, would be bizarre. Language compromising and releasing
accrued claims is not bizarre.