Brown v. Brown ( 2020 )

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JESSICA BROWN v. BRETT BROWN
(AC 42576)
Lavine, Moll and Devlin, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from the order of the trial court requiring
her to reimburse the defendant a certain prorated portion of unallocated
alimony and child support that she received in the year in which she
remarried. The parties’ separation agreement, which had been incorpo-
rated into the dissolution judgment, required the defendant to pay the
plaintiff a specified percentage of his gross annual compensation in any
calendar year, which payments were to terminate on, inter alia, the
plaintiff’s remarriage. In the year in which the plaintiff remarried, the
defendant paid the plaintiff 40 percent of bonuses and severance pay-
ments he received from a former employer a few months before her
remarriage. The court granted the defendant’s postjudgment motion for
order requesting reimbursement, in which he claimed that, when the
plaintiff remarried in August of a year in which she was entitled to
receive unallocated support, she was only to receive those benefits,
specifically the bonus and severance payments, on a prorated basis. In
the plaintiff’s objection to the motion for reimbursement, she claimed
that, because the separation agreement did not contain a provision for
prorating unallocated support, she had no obligation to refund any part
of the unallocated support she received that year. The parties, upon
the plaintiff’s remarriage, stipulated to the defendant’s monthly child
support obligation, which was entered as an order of the court. The
defendant filed a cross appeal from the trial court’s denial of his motion
for modification of child support, in which he claimed that a reduction
in his earned income constituted a substantial change in circumstances
from the date when the court entered the parties’ child support stipula-
tion as an order of the court. On the plaintiff’s appeal and the defendant’s
cross appeal to this court, held:
1. The trial court improperly granted the defendant’s postjudgment motion
for reimbursement of unallocated support and ordered the plaintiff to
repay the defendant a portion of the unallocated support he paid her in
the year of her remarriage: the relevant portion of the parties’ separation
agreement was clear and unambiguous, and the trial court improperly
read a term into the separation agreement when it concluded that it
was implicit that the defendant’s gross annual compensation was to be
prorated, the relevant language in the separation agreement did not
contain the word prorated, and, to the contrary, additional language
from the separation agreement provided that the defendant was to make
all payments from his additional and/or incentive compensation to the
plaintiff within fifteen days of receipt of such payment by the defendant,
and no paragraph of the agreement set forth conditions under which
the plaintiff may have been required to return unallocated support at
the time she was entitled to receive it; furthermore, the parties did
not seek to unbundle alimony and child support in the defendant’s
unallocated payments at the time the parties stipulated to the defendant’s
child support obligation and arrearage, retroactive to the month of the
plaintiff’s remarriage, and the fact that there was no mention of an
overpayment at that time did not support the defendant’s position that
the parties intended to prorate unallocated support that terminated
before the end of a calendar year.
2. The defendant could not prevail on his claim in his cross appeal that the
trial court improperly denied his motion for modification of child support
by concluding that the reduction in his earned income did not constitute
a substantial change in circumstances: any claim that the court failed
to consider the defendant’s argument regarding deviations from child
support guidelines or that the court failed to consider child support
guidelines failed, as at the time that the defendant filed his motion, he
did not plead that the amount of child support he was paying pursuant
to the parties’ stipulation deviated from the child support guidelines
but, instead, that he had experienced a substantial change in circum-
stances due to his loss of earned income, and the court was not required
to consider the presumptive child support under the guidelines, as the
evidence demonstrated the defendant’s ability to maintain his lifestyle,
spending habits, travel and assets, and, thus, he failed to carry his burden
to demonstrate clearly and definitely that he experienced a substantial
change in circumstances notwithstanding his diminution in salary and
period of unemployment.
Argued March 2—officially released July 21, 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 and tried to the court, Scho-
field, J.; judgment dissolving the marriage and granting
certain other relief; thereafter, the court, Tindill, J.,
entered the parties’ stipulation regarding child support
as an order of the court; subsequently, the court, Heller,
J., granted the defendant’s motion for order requesting
reimbursement of unallocated support and denied the
defendant’s motion to modify child support, and the
plaintiff appealed and the defendant cross appealed to
this court. Reversed in part; further proceedings.
Samuel V. Schoonmaker IV, with whom, on the brief,
were Wendy Dunne DiChristina and Peter M. Brynic-
zka, for the appellant-cross appellee (plaintiff).
Leslie I. Jennings, for the appellee-cross appellant
(defendant).
Opinion
LAVINE, J. This appeal concerns the judgment ren-
dered by the trial court when it adjudicated two postdis-
solution motions filed by the defendant, Brett Brown.
The plaintiff, Jessica Brown,1 appeals from the decision
of the court ordering her to reimburse the defendant
certain unallocated alimony and child support (unallo-
cated support), claiming that the court misinterpreted
the parties’ separation agreement. The defendant cross
appeals from the court’s denial of his motion for modifi-
cation of child support. We agree with the plaintiff’s
claim but reject the defendant’s claim. We, therefore,
reverse that portion of the trial court’s judgment with
respect to its order to the plaintiff to reimburse the
defendant unallocated support and affirm the trial
court’s judgment with respect to its denial of the defen-
dant’s motion to modify child support.
The following procedural history is relevant to our
resolution of the parties’ appeals. The parties were mar-
ried in August, 2000, and together had three children,
who were minors on February 26, 2013, when the court,
Schofield, J., rendered judgment dissolving their mar-
riage.2 The judgment of dissolution incorporated the
parties’ separation agreement (agreement) by refer-
ence. Paragraph 4.1 of the agreement obligated the
defendant to pay the plaintiff unallocated support ‘‘dur-
ing his lifetime, until her death or remarriage, or Febru-
ary 28, 2017, whichever event shall first occur . . . .’’
The plaintiff remarried on August 8, 2015, automatically
terminating the defendant’s unallocated support obliga-
tion.3 On October 19, 2015, the plaintiff filed a motion
to ‘‘fix’’ child support in accordance with paragraph 5.1
of the agreement, following the termination of unallo-
cated support.4 On June 20, 2016, the parties stipulated
to the defendant’s monthly child support obligation,
which the court, Tindill, J., entered as an order of the
court.5 In July, 2016, Judge Tindill accepted the parties’
stipulation as to the amount of the defendant’s child
support arrearage, which the defendant paid.6 See foot-
note 4 of this opinion.
On October 24, 2016, the defendant filed a motion in
which he sought to have the court order the plaintiff
to reimburse him for what he claimed was his overpay-
ment of unallocated support in 2015. On January 9,
2017, the defendant filed a motion to modify his child
support obligation on the basis of a substantial change
in circumstances due to the loss of his employment.
The plaintiff opposed both of the defendant’s motions.
The parties appeared before the court, Heller, J., to
argue the defendant’s motions on September 11, 2018.
On January 30, 2019, the court issued a memorandum
of decision in which it granted the defendant’s motion
for reimbursement of unallocated support and ordered
the plaintiff to pay the defendant $81,358.40. The court,
however, denied the defendant’s motion to modify child
support. The present appeal and the present cross
appeal followed.7
We begin with the standard of review applicable to
postdissolution matters. An appellate court ‘‘will not
disturb trial court orders unless the trial court abused
its legal discretion or its findings have no reasonable
basis in the facts. . . . As has often been explained,
the foundation for this standard is that the trial court is
in a clearly advantageous position to assess the personal
facts significant to a domestic relations case. . . . 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 exer-
cise of its discretion, the trial court applies the wrong
standard of law.’’ (Citations omitted; internal quotation
marks omitted.) Gabriel v. Gabriel, 324 Conn. 324, 336,
152 A.3d 1230 (2016).
I
THE PLAINTIFF’S APPEAL
The plaintiff claims that the court erred by granting
the defendant’s motion for order, postjudgment, and
ordering her to repay the defendant $81,358.40 of the
unallocated support he paid her in 2015. The plaintiff
claims that the court misinterpreted the agreement,
failed to enforce its intended terms, and added terms
to the agreement. We agree with the plaintiff and, there-
fore, reverse in part the judgment of the trial court.
The agreement was incorporated by reference into
the February 26, 2013 judgment dissolving the parties’
marriage. Article IV of the agreement, titled Unallocated
Alimony and Support, required the defendant to pay
the plaintiff unallocated support pursuant to certain
terms. The relevant paragraphs of article IV follow:
‘‘4.1. Commencing as of the first day of March, 2013,
the [defendant] shall pay to the [plaintiff], during his
lifetime, until her death or remarriage, or February 28,
2017, whichever event shall first occur, the following
percentages of the ’gross annual compensation’ as
hereinafter defined in any calendar year.8 . . . [In a
year in which the defendant earned up to $1 million,
the plaintiff was entitled to 40 percent of gross annual
compensation, not to exceed $400,000.]9
‘‘4.2. All payments made from the [defendant’s] base
salary shall be made in cash and in equal monthly install-
ments on the first day of each calendar month, in
advance. All payments from the [defendant’s] additional
and/or incentive compensation shall be made by the
[defendant] to the [plaintiff] within fifteen . . . days
of receipt of such payments by the [defendant].
‘‘4.3. (a) ‘Gross annual compensation in any year’
shall be defined to include any and all earnings of any
nature whatsoever actually received by the [defendant]
in the form of cash or cash equivalents, or which the
[defendant] is entitled to receive, from any and all
sources including in relation to the services rendered
by the [defendant] by way of his past, current or future
employment, including but not limited to salary and
bonus . . . .10
‘‘(c) The [defendant] shall take no action for the pur-
pose of defeating the [plaintiff’s] timely right to receive
alimony and, in particular, shall take no action to
reduce, divert, delay or defer income for the purpose of
reducing, limiting or delaying the [defendant’s] alimony
obligation to the [plaintiff].
‘‘4.4. The alimony payments pursuant to paragraph
4.1 hereof shall be non-modifiable as to duration by the
parties or a court of competent jurisdiction and any
decree of any court incorporating all or a portion of
this [a]greement shall preclude such modification. The
alimony payments pursuant to paragraph 4.1 shall oth-
erwise be modifiable pursuant to [General Statutes
§ 46b-86 (b)].
‘‘4.5. For each year in which the [defendant] is obli-
gated to pay unallocated alimony and support to the
[plaintiff], the [defendant] shall provide the [plaintiff]
with his year-end [pay stub], W-2s, K-1s and 1099s and
a copy of his federal tax return when filed with the
taxing authority. In addition, the [defendant] shall pro-
vide the [plaintiff] evidence, including pay stub or distri-
bution sheet, each time he receives any change in salary
or bonus within seven . . . days of receipt or filing. In
addition, the [defendant] shall provide the [plaintiff]
within seven . . . days of his receipt, with all statements
evidencing the award of restricted share units and stock
options and any other deferred or incentive compensa-
tion, including but not limited to documentation
reflecting when and under what circumstances the
restrictions lapse and/or the options may be exercised.
‘‘4.6. In the event the [defendant] changes employ-
ment and receives compensation incident thereto, in
replacement of deferred or incentive compensation to
which the [plaintiff] was entitled to share as income
subject to the provisions of this Article IV, she shall be
entitled to share in the replacement compensation to
the extent she would have shared in the original
deferred or incentive compensation.
‘‘4.7. The [defendant] shall take no action for the
purpose of defeating the [plaintiff’s] timely right to
receive unallocated alimony and support and, in partic-
ular, shall take no action to reduce, divert, delay or
defer income for the purpose of reducing, limiting or
delaying the [defendant’s] unallocated alimony and sup-
port obligation to the [plaintiff] pursuant to this Article
IV.’’ (Emphasis added; footnotes added.)
In its memorandum of decision, the court found that
the defendant had requested that it ‘‘order the plaintiff
to reimburse him for the unallocated alimony and child
support that he overpaid in 2015. According to the rec-
onciliation prepared by [the defendant’s] prior counsel
in August, 2016, the defendant paid the plaintiff
$288,309.51 in 2015, but he should have paid her
$206,951.11.11 The difference of $81,358.40 is largely due
to the defendant’s paying the plaintiff 40 percent of the
bonuses and severance payments that he received in
March and April, 2015 from RBS and [Jefferies, LLC].
The defendant made these payments a few months
before the plaintiff remarried.’’ (Footnote added and
footnote omitted.) The court continued that, at oral
argument on September 11, 2018, the defendant con-
tended that he had overpaid unallocated support in 2015
because the plaintiff was only entitled to receive 40
percent of his gross annual compensation on a prorated
basis (i.e., for seven months, not for the entire year),
in view of her remarriage in August, 2015. The plaintiff
countered that the agreement did not contain a provi-
sion for prorating unallocated support and, therefore,
she had no obligation to refund any part of the unallo-
cated support she received in 2015.
The court determined that the defendant’s obligation
to pay the plaintiff unallocated support terminated
when the plaintiff remarried and further determined
that, pursuant to paragraph 4.1 of the agreement, ‘‘the
plaintiff was entitled to receive 40 percent of the defen-
dant’s ‘gross annual compensation in any year,’ as
defined in paragraph 4.3 of the [agreement], between
$0 and [$1 million]. . . .’’ Although the court agreed
with the plaintiff that nothing in the agreement ‘‘states
explicitly that the defendant’s annual unallocated . . .
support obligation should be prorated if it terminated
prior to the end of a calendar year,’’ the court found
that ‘‘[t]here is also nothing in the . . . agreement to
suggest that the plaintiff would be entitled to a windfall
if she remarried shortly after the defendant paid her 40
percent of his annual bonus, or that the defendant
would be entitled to keep 100 percent of his annual
bonus if he received it a few weeks after the plaintiff
remarried.’’
As part of its analysis, the court set forth a portion
of paragraph 4.5 of the agreement that requires the
defendant in each year he is obligated to pay unallo-
cated support to provide the plaintiff with his ‘‘year-
end [pay stub], W-2s, K-1s and 1099s and a copy of his
federal tax return . . . .’’12 The court found that, begin-
ning in 2013, and continuing for each year in which he
had an unallocated support obligation, the defendant
was to provide his year-end tax documents to the plain-
tiff, including 2015 when his unallocated support obliga-
tion terminated in August of that year. The court deter-
mined that the defendant would have had to provide
the plaintiff with year-end tax documents in 2017, had
his unallocated support obligation continued until Feb-
ruary 28, 2017, when his obligation terminated under
the terms of the agreement. The court concluded that
the plaintiff had a right to review the defendant’s tax
documents to confirm that she had received the proper
percentage of his ‘‘gross annual compensation’’ for that
portion of the year, whether it was seven months or
two months or twelve months.
The court also stated that ‘‘[i]mplicit in paragraph 4.1
is that the defendant’s [unallocated support] obligation,
which was based on his gross annual compensation,
was to be prorated when it terminated prior to Decem-
ber 31. Otherwise there would be no need to review
the defendant’s year-end tax documents for the year in
which the [unallocated support] terminated; the only
documents required would be evidence of income
received to the date of termination.’’ The court found
that ‘‘the parties intended that the defendant’s [unallo-
cated support] obligation would be prorated if it termi-
nated prior to the end of the year.’’13 The court, there-
fore, granted the defendant’s motion and ordered the
plaintiff to reimburse the defendant $81,358.40.
Our resolution of the plaintiff’s claim turns on our
construction of article IV of the agreement. We are
guided by the principles of contract construction and
the applicable standard of review. ‘‘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 accor-
dance with the general principles governing contracts.
. . . When construing a contract, we seek to determine
the intent of the parties from the language used interpre-
ted in the light of the situation of the parties and the
circumstances connected with the transaction. . . .
[T]he intent of the parties is to be ascertained 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 interpretation of a contract is possi-
ble, 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. . . . When the language of a contract
is ambiguous, the determination of the parties’ intent
is a question of fact. . . . When the language is clear
and unambiguous, however, the contract must be given
effect according to its terms, and the determination of
the parties’ intent is a question of law. . . .
‘‘A contract is unambiguous when its language is clear
and conveys a definite and precise intent. . . . The
court will not torture words to impart ambiguity when
ordinary meaning leaves no room for ambiguity. . . .
Moreover, the mere fact that the parties advance differ-
ent interpretations of the language in question does not
necessitate a conclusion that the language is ambigu-
ous. . . .
‘‘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.’’
(Internal quotation marks omitted.) Grogan v. Penza,
194 Conn. App. 72, 78, 220 A.3d 147 (2019). ‘‘If the
language of the contract is susceptible to more than one
reasonable interpretation, the contract is ambiguous.’’
(Internal quotation marks omitted.) Id., 79. ‘‘A word is
ambiguous when it is capable of being interpreted by
reasonably well-informed persons in either of two or
more senses. . . . Ambiguous also means unclear or
uncertain . . . [or] that which is susceptible of more
than one interpretation or understood in more ways
than one.’’ (Citation omitted; internal quotation marks
omitted.) Bijur v. Bijur, 79 Conn. App. 752, 760, 831
A.2d 824 (2003). Importantly, an agreement is not
ambiguous because it does not contain a certain provi-
sion or is allegedly incomplete. See Massey v. Branford,
118 Conn. App. 491, 499, 985 A.2d 335 (2009), cert.
denied, 295 Conn. 913, 990 A.2d 345 (2010).
‘‘[T]he threshold determination in the construction
of a separation agreement . . . is whether, examining
the relevant provisions in light of the context of the
situation, the provision at issue is clear and unambigu-
ous, which is a question of law over which our review
is plenary.’’ (Internal quotation marks omitted.) Fazio
v. Fazio, 162 Conn. App. 236, 244, 131 A.3d 1162, cert.
denied, 320 Conn. 922, 132 A.3d 1095 (2016). On the
basis of our plenary review of article IV of the agree-
ment, we conclude that it is clear and unambiguous.14
In his brief, the defendant argues that ‘‘to effectuate
the intent of the parties that the plaintiff share in the
defendant’s ‘gross annual compensation,’ that entitle-
ment must be read to mean that, in this instance, the
plaintiff shall share in 40 [percent] of all ‘gross annual
compensation’ received by the defendant in 2015, pro-
rated for the seven out of twelve months of 2015 in
which she was entitled to receive [unallocated support]
. . . .’’ (Emphasis added.) We disagree, as paragraph
4.1 does not contain the word all. As the plaintiff points
out in her reply brief, the term ‘‘gross annual compensa-
tion in any calendar year’’ does not include the term
prorated.
‘‘Gross annual compensation in any calendar year’’
is defined in paragraph 4.3 (a) of the agreement and
provides, in part, ‘‘ ‘Gross annual compensation in any
year’ shall be defined to include any and all earnings
of any nature whatsoever actually received by the
[defendant] in the form of cash or cash equivalents, or
which the [defendant] is entitled to receive, from any
and all sources including in relation to the services
rendered by the [defendant] by way of his past, current
or future employment, including but not limited to sal-
ary and bonus . . . .’’ The paragraph defines what
types of payments constitute gross annual compensa-
tion. It does not provide that gross annual compensation
is the sum total of the gross annual compensation that
the defendant receives in a year.
Significantly, paragraph 4.3 (a) does not address
when the defendant is to pay the plaintiff the relevant
percentage of the gross annual compensation he
receives. The time in which he is to make unallocated
support payments to the plaintiff is set forth in para-
graph 4.2, to wit: ‘‘All payments made from the [defen-
dant’s] base salary shall be made . . . on the first day
of each calendar month, in advance. All payments from
the [defendant’s] additional and/or incentive compensa-
tion shall be made by the [defendant] . . . within fif-
teen . . . days of receipt of such payment by the [defen-
dant].’’ (Emphasis added.)
A ‘‘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. . . .’’ (Internal quotation marks omitted.) Grogan
v. Penza, supra, 194 Conn. App. 79.
Pursuant to paragraphs 4.1, 4.2, and 4.3 (a) of the
agreement, in the year 2015, the defendant was required
to pay unallocated support to the plaintiff from the
gross annual compensation that he actually received
until August 8, 2015, when his unallocated support obli-
gation terminated due to the plaintiff’s remarriage. The
defendant received bonuses and severance pay, which
by definition is gross annual compensation, in March
and April, at a time in which he was required to pay the
plaintiff 40 percent thereof within fifteen days. None
of those three paragraphs, or any other paragraph in
the agreement, sets forth conditions under which the
plaintiff may have been required to return unallocated
support that she received at a time she was entitled to
receive it.15
The case of Bijur v. Bijur, supra, 79 Conn. App. 752,
is instructive. In Bijur, the defendant filed a motion
seeking reimbursement of alimony he claimed that he
had overpaid the plaintiff. The issue in the case centered
on the meaning of the word retirement. Id., 755. The
defendant retired in the sense that he had stopped work-
ing on February 4, 2001. Id., 754–55. He paid the plaintiff
alimony in February, 2001, but in no month thereafter.
The plaintiff filed a motion for contempt in which she
alleged that the defendant had failed to pay her alimony
pursuant to the terms of the separation agreement,
which required the defendant to pay alimony when he
retired subject to the distribution of his pension. Id.,
756. A subissue in the case was the meaning of pension
distribution. The trial court denied the defendant’s
motion for reimbursement and ordered the defendant to
pay the plaintiff retroactively to the date of his pension
distribution, but did not find him to be in contempt. Id.
The defendant appealed to this court, claiming that the
trial court had misinterpreted the parties’ separation
agreement with respect to the duration of his alimony
obligation. Id., 756–57. This court found that the mean-
ing of retirement in the separation agreement was
ambiguous and that the parties had offered reasonable
but differing interpretations of that portion of the agree-
ment. Id., 761. After resolving the distribution question,
and therefore the date of the defendant’s retirement
(March 1); id., 764; this court reversed the trial court’s
judgment ordering the defendant to pay the plaintiff
alimony retroactively to March, but affirmed the trial
court’s decision denying the defendant’s motion for dis-
gorgement from the plaintiff on a per day, prorated
basis for the month of February, following the day he
stopped working, for the following reasons. Id., 766.
‘‘It is well settled that in a dissolution of marriage
action, the distribution of assets rests within the sound
discretion of the court . . . . To conclude that the
court abused its discretion by refusing to order the
plaintiff to refund the money, we must determine
whether the court incorrectly applied the law or could
not reasonably have concluded as it did. . . .
‘‘Periodic alimony is a type of permanent alimony
paid at scheduled intervals. The purpose of periodic
alimony is primarily to continue the duty to support
the recipient spouse. . . . [T]he right to enforce each
periodic payment accrues on each payment as it
matures. . . . The periodic alimony payment matures
when it becomes due.’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) Id., 766–67;
see also 24A Am. Jur. 2d 121, Divorce and Separation
§ 666 (2008). The Bijur defendant was required to make
alimony payments on the first day of the month in
advance. Because he paid his February alimony obliga-
tion on the first of the month, he was not entitled to a
per diem disgorgement for the remainder of the month.
Bijur v. Bijur, supra, 767.
In the present case, paragraph 4.2 required the defen-
dant to pay the plaintiff gross annual compensation in
the form of bonuses and severance pay within fifteen
days of its receipt. In March and April, 2015, the plaintiff
was entitled to receive unallocated support. The defen-
dant was obligated to pay the plaintiff unallocated sup-
port from the bonus and severance pay he received in
March and April, 2015. His unallocated support payment
matured and became due fifteen days after he received
each payment. The defendant, therefore, was not enti-
tled to reimbursement for that which he was obligated
to pay the plaintiff at the time.
The plaintiff also claims that the court improperly
added terms to the agreement when it stated, ‘‘[i]mplicit
in paragraph 4.1 is that the defendant’s unallocated
[support] obligation, which was based on his gross
annual compensation, was to be prorated when it termi-
nated prior to December 31.’’ The term prorated is not
found anywhere in the agreement. ‘‘In interpreting a
contract courts cannot add new or different terms.’’
(Internal quotation marks omitted.) Stratford v. Win-
terbottom, 151 Conn. App. 60, 73, 95 A.3d 538, cert.
denied, 314 Conn. 911, 100 A.3d 403 (2014). ‘‘The inten-
tion of the parties to a contract is to be determined
from the language used interpreted in the light of the
situation of the parties and the circumstances con-
nected with the transaction. The question is not what
intention existed in the minds of the parties but what
intention is expressed in the language used.’’ (Empha-
sis added.) Ives v. Willimantic, 121 Conn. 408, 411, 185
A. 427 (1936). The agreement contains no provision
that the unallocated support was to be prorated if it
terminated prior to the end of a calendar year.16
An agreement is not ambiguous because it does not
contain a provision or is allegedly incomplete. In Mas-
sey v. Branford, supra, 118 Conn. App. 498–99, this
court affirmed the judgment of the trial court, which
rejected the plaintiffs’ claim that the settlement agree-
ment was incomplete because it did not include the
name of a nonparty. See also Kostak v. Board of Educa-
tion, Superior Court, judicial district of Litchfield,
Docket No. CV-XX-XXXXXXX-S (June 26, 2006) (rejecting
plaintiff’s claim that settlement agreement was incom-
plete because certain term was not included in it).
The evidence in the present case indicates that each
of the parties has a high net worth and is accustomed
to sophisticated financial matters. See part II of this
opinion. At the time they were divorced, the parties
were represented by experienced counsel who special-
ized in dissolution matters. Had the parties wanted to
include a pro rata provision, or a true-up as it is some-
times called, in the agreement, they could have done
so. Pro rata and true-up provisions commonly are incor-
porated in separation agreements. See, e.g., Grogan v.
Penza, supra, 194 Conn. App. 7517; Nadel v. Luttinger,
168 Conn. App. 689, 693, 147 A.3d 1075 (2016).18 The
parties did not include language providing for the unal-
located support that the defendant paid the plaintiff to
be prorated if the support obligation terminated before
December 31. ‘‘A court cannot ignore or disregard the
language of the agreement because in hindsight an addi-
tional or more expansive term would have been better
for one of the parties.’’ Grogan v. Penza, supra, 80; see
also Crews v. Crews, 295 Conn. 153, 169, 989 A.2d 1060
(2010). The court, therefore, improperly read a term
into the agreement when it concluded that it was
implicit that the defendant’s gross annual compensa-
tion was to be prorated.
Child support and alimony are not delineated in an
order of unallocated support. This court has stated, in
the context of a motion for modification of child sup-
port, that ‘‘[b]ecause an unallocated order incorporates
alimony and child support without delineating specific
amounts for each component, the unallocated order,
along with other financial orders, necessarily includes
a portion attributable to child support in an amount
sufficient to satisfy the [child support] guidelines. . . .
Thus, to decide a motion to modify in this situation, a
trial court must determine what part of the original
decree constituted modifiable child support and what
part constituted nonmodifiable alimony.’’ (Citation
omitted; internal quotation marks omitted.) Malpeso v.
Malpeso, 165 Conn. App. 151, 165–66, 138 A.3d 1069
(2016). In other words, before the court may rule on
the motion to modify, it must unbundle the unallocated
support. Id.
In the present case, the plaintiff’s right to unallocated
support terminated in August, 2015. In June, 2016, the
parties stipulated that the defendant’s child support
obligation was $4250 per month with step-downs as
each one of their children reached the age of majority.
A few weeks later, the parties stipulated to the defen-
dant’s child support arrearage retroactive to August,
2015. As noted in part II of this opinion, no court deter-
mined the defendant’s child support obligation at the
time of dissolution in 2013, or in June, 2016, when Judge
Tindill accepted the parties’ child support stipulation.
See footnote 20 of this opinion. The fact that the parties
did not seek to unbundle alimony and child support in
the defendant’s unallocated payments at that time is
telling. It does not appear that, at the time the parties
negotiated the defendant’s child support obligation and
related arrearage, the defendant claimed an overpay-
ment of unallocated support to offset the arrearage.
If the parties had intended to prorate the unallocated
support the plaintiff received for only seven months in
2015, any claimed overpayment would have been taken
into account and placed on the record. The fact that
there was no mention of an overpayment in June or
July, 2016, does not support the defendant’s position
that the parties intended to prorate unallocated support
that terminated before the end of a calendar year.
For the foregoing reasons, the judgment of the trial
court with respect to the granting of the defendant’s
motion for order, postjudgment, is reversed and the
case is remanded with direction to deny the motion.
II
THE DEFENDANT’S CROSS APPEAL
In his cross appeal, the defendant claims that the
court improperly denied his motion for modification of
child support by concluding that the reduction in his
earned income did not constitute a substantial change
in circumstances. We disagree.
‘‘[General Statutes §] 46b-86 governs the modification
of [a] child support order after the date of a dissolution
judgment. . . . Section 46b-86 (a)19 permits the court
to modify . . . child support orders in two alternative
circumstances. Pursuant to this statute, a court may
not modify [a] child support order unless there is first
either (1) a showing of a substantial change in the
circumstances of either party or (2) a showing that the
final order for child support substantially deviates from
the child support guidelines . . . .’’ (Emphasis added;
footnote added and omitted; internal quotation marks
omitted.) De Almeida-Kennedy v. Kennedy, 188 Conn.
App. 670, 675–76, 205 A.3d 704 (quoting Weinstein v.
Weinstein, 104 Conn. App. 482, 491–92, 934 A.2d 306
(2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008)),
cert. denied, 332 Conn. 909, 210 A.3d 566 (2019).
The following additional facts are relevant to our
resolution of the defendant’s cross appeal. As noted
previously in part I of this opinion, the parties stipulated
in June, 2016, that from the time his unallocated support
obligation terminated in August, 2015, the defendant’s
child support obligation was $4250 a month, subject to
a one-third reduction when each one of the parties’
children reached the age of majority. On January 9,
2017, the defendant filed a motion to modify his child
support obligation because ‘‘he ha[d] been terminated
from his employment and no longer ha[d] any earned
income.’’ He moved ‘‘for an order modifying his child
support obligation to an amount that is consistent with
the current . . . child support guidelines.’’ The defen-
dant did not plead that the amount of child support
that he was paying pursuant to the parties’ stipulation
deviated from the child support guidelines.
The parties appeared before the court to argue the
defendant’s motion for modification of child support in
September, 2018. The defendant testified at length on
both direct and cross-examination regarding his
income, employment, and expenses. When ruling on
the motion, the court recited the procedural history
regarding the defendant’s child support obligation, spe-
cifically, that paragraph 4.1 of the agreement required
the defendant to pay unallocated support to the plaintiff
until her remarriage. When the plaintiff remarried on
August 8, 2015, the defendant stopped paying her unallo-
cated support. In June, 2016, the parties stipulated to
the defendant’s child support obligation; the defendant
agreed to pay the plaintiff child support in the amount
of $4250 per month retroactive to August, 2015.20 See
footnote 21 of this opinion.
In addition, the court found that at the time of the
June, 2016 child support stipulation, the defendant was
a bond trader employed by Jefferies, LLC, where his
annual base salary was $400,000. According to his May
20, 2016 financial affidavit, the defendant’s gross base
monthly income from employment was $33,333 and his
net monthly income from employment was $19,580. His
total monthly income, however, was $28,345, which
included his net base monthly employment, interest,
dividend, and bonus income. He reported monthly
expenses of $38,180. His assets were valued at
$10,166,496 and his liabilities at $3600.21
The court found that the defendant’s employment
with Jefferies, LLC, ended in January, 2017, and he was
given one month’s salary as severance. The defendant
was unemployed from that time until August 22, 2017,
when he joined Stifel, Nicolaus & Co., Inc. (Stifel), as
a bond trader with an annual base salary of $250,000.
The defendant’s September 11, 2018 financial affidavit
indicated a gross monthly salary of $20,833 and a net
monthly salary of $12,485. His net average monthly com-
missions were $151. The defendant estimated his
monthly income from interest and dividends to be
$5590. His total monthly expenses were $40,420, his
assets were valued at $11,044,794, and his liabilities
were valued at $4909. Stifel lent the defendant $150,000,
a loan forgivable over three years.
With respect to the plaintiff, the court found that she
had not worked outside her home since she became
pregnant with the parties’ eldest child. Her May 18, 2016
financial affidavit reflected an average monthly income
of $1648 from interest and dividends. Her monthly
expenses were $41,027. She had assets valued at
$6,309,279 and no liabilities. The plaintiff’s September 6,
2018 financial affidavit reflected a net monthly income
from investments of $6296 and monthly rental income
of $1458. She reported monthly expenses of $37,697,
which included private school tuition for the parties’
children that was paid for by the defendant and house-
hold expenses that were paid for by her husband.22
The court acknowledged the principles of law govern-
ing the modification of child support. Section 46-86 (a)
governs the modification of a child support order after
the date of dissolution and provides in relevant part:
‘‘Unless and to the extent that the decree precludes
modification . . . any final order for the periodic pay-
ment of . . . support . . . may, at any time thereafter,
be . . . set aside, altered or modified . . . upon a
showing of a substantial change in the circumstances
of either party . . . .’’ See also Weinstein v. Weinstein,
supra, 104 Conn. App. 482. ‘‘To obtain a modification,
the moving party must demonstrate that circumstances
have changed since the last court order such that it
would be unjust or inequitable to hold either part to
it.’’ Borkowski v. Borkowski, 228 Conn. 729, 737–38,
638 A.2d 1060 (1994).
The court recognized that under the substantial
change in circumstances provision of § 46b-86 (a),
‘‘[w]hen presented with a motion for modification, a
court must first determine whether there has been a
substantial change in the financial circumstances of
one or both of the parties. . . . Second, if the court
finds a substantial change in circumstances, it may
properly consider the motion and . . . make an order
for modification. . . . A party moving for a modifica-
tion of [a support] order must clearly and definitely
establish the occurrence of a substantial change in the
circumstances of either party that makes the continua-
tion of the prior order unfair and improper. . . . The
party seeking modification bears the burden of showing
the existence of a substantial change in the circum-
stances.’’ (Emphasis added; internal quotation marks
omitted.) Light v. Grimes, 156 Conn. App. 53, 65, 111
A.3d 551 (2015); Fox v. Fox, 152 Conn. App. 611, 621,
99 A.3d 1206, cert. denied, 314 Conn. 945, 103 A.3d 977
(2014) (same). In determining whether there has been
a substantial change of circumstances of one or both
of the parties, ‘‘the trial court is limited to considering
events arising after the dissolution decree or the most
recent modification thereof.’’ Olson v. Mohammadu,
310 Conn. 665, 675, 81 A.3d 215 (2013).
‘‘In the context of a trial court’s consideration of a
motion to modify, the guidelines become relevant only
after a change in circumstances has been shown, if
that is the ground urged in support of modification
. . . or in determining whether the existing child sup-
port order substantially deviates from the guidelines,
if that is the ground urged in support of modification.’’
(Citation omitted; emphasis added.) Mullin v. Mullin,
28 Conn. App. 632, 635–36, 612 A.2d 796 (1992).
‘‘Because the establishment of changed circum-
stances is a condition precedent to a party’s relief, it
is pertinent for the trial court to inquire as to what, if
any, new circumstance warrants a modification of the
exiting order.’’ Borkowski v. Borkowski, supra, 228
Conn. 738. A court’s findings on the basis of financial
affidavits alone are inadequate to support a modifica-
tion without any record that the court had evaluated
the circumstances surrounding the payer’s claimed
inability to pay. See Olson v. Mohammadu, supra, 310
Conn. 676; Sanchione v. Sanchione, 173 Conn. 397, 407,
378 A.2d 522 (1977).
In the present case, the court determined that June,
2016, was the starting point for its determination as to
whether there had been a substantial change in the
parties’ circumstances when Judge Tindill entered the
parties’ child support stipulation as an order of the
court.23 Judge Heller examined the evidence presented
at the September 11, 2018 hearing to determine whether
the defendant clearly and definitely had established that
there was a substantial change in circumstances. The
court found that in September, 2018, the defendant’s
financial circumstances had not changed substantially
since June, 2016.24 Significantly, the court found that
the defendant was able to maintain his lifestyle even
though he had not been employed from January until
August, 2017. Although his net monthly base salary had
declined by 36 percent, his assets at the time of the 2018
hearing exceeded $11,000,000 and his monthly expenses
and liabilities were essentially unchanged from June,
2016. The court considered the defendant’s total finan-
cial picture on the basis of the evidence presented and
found that he had ‘‘failed to establish the threshold
requirement of . . . § 46b-86 (a)—he has not shown
that a substantial change in his financial circumstances
has occurred since the parties entered into the June,
2016 stipulation.’’ The court therefore denied the defen-
dant’s motion to modify his child support obligation.
The court found the amounts listed on his financial
affidavit, but did not find his total net income for either
2017 or 2018.25 Neither party requested an articulation
for that purpose. See Practice Book § 66-5. The court
concluded that the defendant had failed to establish
the threshold requirement of § 46b-86 (a) that there had
been a substantial change in his financial circumstances
since the parties entered into the 2016 child support
stipulation and denied the defendant’s motion for modi-
fication of child support obligation.
On appeal, the defendant claims that the court
improperly concluded that his reduction in income did
not constitute a substantial change in circumstances
because the court improperly (1) considered his assets
and expenses when it determined that his significant
reduction in income did not constitute a substantial
change in circumstances, (2) failed to consider that
the decrease in the defendant’s income decreased the
presumptive child support order by more than 15 per-
cent, (3) considered his income only as of the date of
the hearing, rather than at both the time he filed the
motion for modification of child support and the date
of the hearing on that motion,26 (4) included other
income for purposes of his support obligation, (5) con-
sidered as income the return on his capital contribution
in an investment, (6) considered the exercise of stock
units awarded to him as part of the property division
of the parties’ assets at the time of dissolution, and (7)
imputed a rate of return on his investments that he did
not realize.27 He also claims that with his income at
the time he filed the motion for modification of child
support and at the time the motion was heard, the
decrease in presumptive child support was greater than
15 percent from the most recent order, thereby provid-
ing a presumptive substantial change in circum-
stances.28
The plaintiff responded in her brief that the trial court
properly found that there had been no substantial
change in the defendant’s financial circumstances by
comparing his September, 2018 financial affidavit with
his May, 2016 financial affidavit. The plaintiff acknowl-
edges, as did the trial court, that the defendant had
sustained a decline in earned income but contends that
the defendant’s overall financial situation had not
changed substantially. Although the defendant’s base
salary was $400,000 in 2016 and had decreased to
$250,000 in 2018, in 2016, his assets were valued at
$10,166,496 and his liabilities totaled $3600. In 2018, his
assets were valued at $11,044,794 and his liabilities at
$4909. Even though the defendant had been unem-
ployed from January to August in 2017, his net worth
increased by $878,298. In early 2017, he received a
deferred cash payment of $1.3 million from RBS, his
former employer, and a second deferred payment in
2018. The plaintiff also argued that the court found
no evidence that the defendant’s lifestyle had changed
between June, 2016 and September, 2018. In addition to
his earned income, in 2017, he received approximately
$66,000 in dividends and interest from his investment
portfolio. The plaintiff noted that, according to the
defendant’s financial affidavits, his expenses were
greater than his earned income, indicating that he sup-
ported his lifestyle, in part, with returns from his
investments.
On the basis of our review of the record, particularly
the evidence regarding the defendant’s ability to main-
tain his lifestyle, spending habits, travel, and assets29;
the briefs of the parties; and their oral arguments, we
conclude that the court did not abuse its discretion by
denying the defendant’s motion for modification
because the defendant failed to carry his burden to
demonstrate clearly and definitely that there has been
a substantial change in circumstances notwithstanding
his diminution in salary and period of unemployment.
We acknowledge that the decrease in the defendant’s
earned income may have created a rebuttable presump-
tion of a greater than 15 percent deviation from the
child support guidelines, but neither Judge Tindill nor
Judge Heller ever made a finding as to the presumptive
child support under the guidelines. In 2016, the defen-
dant agreed to pay child support of $4250 per month
without a finding as to the presumptive amount under
the guidelines. It is apparent to us from the memoran-
dum of decision that Judge Heller determined that the
defendant’s overall financial circumstances, which had
improved between 2016 and 2018, did not represent a
substantial change of circumstances and, therefore, the
presumption was rebutted.
First, as a matter of law, we conclude that any claim
that the court failed to consider the defendant’s argu-
ment regarding deviations from the child support guide-
lines or that the court failed to consider the child sup-
port guidelines fails. The basis of the defendant’s
motion for modification was a substantial change in
circumstances due to his loss of earned income, not a
deviation from the child support guidelines. The court
carefully examined the evidence, including the defen-
dant’s testimony regarding his income and spending
habits, and the defendant’s financial affidavit and deter-
mined that there had not been a substantial change in
his financial circumstances. Unless the defendant had
demonstrated a substantial change in circumstances,
which he did not, there was no need for the court to
consider the child support guidelines.30
The defendant’s claims that the court improperly con-
sidered his assets and expenses and included ‘‘other
income’’ as requested by the plaintiff when it found that
there had been no substantial change in circumstances
are without merit. The court did not address the defen-
dant’s ‘‘other income,’’ whatever it may be. The court
found that there was no substantial change in circum-
stances on the basis of the defendant’s lifestyle between
2016 and 2018, which had not changed despite a nearly
40 percent reduction in his base salary and months of
unemployment. As to the court’s consideration of the
source of the defendant’s income, the child support
guidelines ‘‘include bonus and deferred compensation
in the definition of gross income. Regs., Conn. State
Agencies § 46b-215a-1 (11) (A). A court must consider
earned and unearned income from all sources in calcu-
lating gross income to fashion child support obligations.
. . . Id., § 46b-215a-1 (11).’’ (Emphasis in original; inter-
nal quotation marks omitted.) Hendricks v. Haydu, 160
Conn. App. 103, 117, 124 A.3d 554 (2015). Moreover,
questions involving modification of child support
depend on conditions as they exist at the time of the
hearing. See Tomlinson v. Tomlinson, 305 Conn. 539,
558, 46 A.3d 112 (2012). ‘‘[T]he determination of a par-
ent’s child support obligation must account for all of
the income that would have been available to support
the children had the family remained together.’’ Jenkins
v. Jenkins, 243 Conn. 584, 594, 704 A.2d 231 (1998).
Our Supreme Court has stated that it ‘‘broadly interprets
the definition of gross income contained in the guide-
lines to include items that, in effect, increase the amount
of a parent’s income that is available for child support
purposes.’’ (Emphasis omitted; internal quotation
marks omitted.) Hendricks v. Haydu, supra, 113; see
also Unkelbach v. McNary, 244 Conn. 350, 360, 710 A.2d
717 (1998). For the foregoing reasons, we conclude that
the court did not abuse its discretion when it denied the
defendant’s motion for modification of child support.
The judgment is reversed with respect to the granting
of the defendant’s motion for order, postjudgment, for
reimbursement of unallocated support and the case is
remanded with direction to deny the defendant’s
motion; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
The plaintiff is now known as Jessica Drbul.
2
The children still were minors at the time the trial court, Heller, J.,
decided the motions at issue in this appeal.
3
The plaintiff does not dispute that her right to alimony terminated at
the time she remarried. See Mihalyak v. Mihalyak, 30 Conn. App. 516,
521, 620 A.2d 1327 (1993) (time certain alimony termination provision in
dissolution judgment is self-executing).
4
Article V of the separation agreement is titled ‘‘Child Support.’’ Paragraph
5.1 provides: ‘‘Upon the termination of the unallocated alimony and child
support pursuant to Article IV hereof, the parties shall determine the amount
of child support to be paid by the [defendant] during his lifetime to the
[plaintiff] for the support of each of the minor children and in the event
they are unable to agree, the amount of such child support payments shall
be determined by a court of competent jurisdiction. The amount of child
support shall be paid retroactive to the date of the termination of the
unallocated alimony and support payments.’’
5
Nothing in the file indicates that the parties submitted child support
guidelines at the June, 2016 hearing or that Judge Tindill made a finding as
to the presumptive child support under the guidelines.
6
At the time the parties stipulated to the defendant’s child support arrear-
age in July, 2016, the defendant did not seek a credit against his child support
arrearage on the basis of an overpayment of unallocated support that he
paid in 2015.
7
We recognize that the parties have filed appeals from separate decisions
of the trial court that were issued in one memorandum of decision. There
is precedent for denominating the appeals as an appeal and a cross appeal.
See Commissioner of Public Health v. Freedom of Information Commis-
sion, 311 Conn. 262, 267 n.3, 86 A.3d 1044 (2014).
8
The agreement contained a chart governing the amount of unallocated
support the defendant was to pay the plaintiff in a particular year depending
on the amount of gross annual compensation that he received. The chart
contained five levels of increasing annual compensation and corresponding
reductions in the percentage of that compensation to which the plaintiff
was entitled as unallocated support. In other words, as the defendant’s
compensation increased, the plaintiff’s entitled percentage of it decreased.
9
There is no dispute that the defendant earned less than $1 million in 2015.
10
Paragraph 4.3 (b) pertains to the defendant’s self-employment, if any,
and is not implicated in the present appeal.
11
The defendant represented in his motion for order, postjudgment, that
he had ‘‘paid the plaintiff $288,309.51 [unallocated support] in calendar year
2015, and claim[ed] that he [had] overpaid the [unallocated support] in the
amount of $81,251.91. Pursuant to the following calculations, [he claimed
that the] plaintiff should have received $207,057.60 as [unallocated support]:
‘‘2015 Gross Annual Income 40 [percent] Multiplied by [0].5833
‘‘$877,440.45 $354,967.18 $207,057.60’’
In a footnote in its memorandum of decision, the court noted that ‘‘the
defendant in his proposed orders ask[ed] that the plaintiff be ordered to
reimburse him the sum of $81,251.91. In his memorandum of law re: portion
of bonus income paid in 2015 includible in annual alimony calculation[s]
. . . the defendant claims that the overpayment of [unallocated support]
was $81,240.07.’’
12
The remainder of paragraph 4.5 provides: ‘‘In addition, the [defendant]
shall provide the [plaintiff] evidence, including pay stub or distribution sheet,
each time he receives any change in salary or bonus within seven . . . days
of receipt or filing. In addition, the [defendant] shall provide the [plaintiff]
within seven . . . days of his receipt, with all statements evidencing the
award of restricted share units and stock options and any other deferred
or incentive compensation, including but not limited to documentation
reflecting when and under what circumstances the restrictions lapse and/
or the options may be exercised.’’ (Emphasis added.)
13
In support of its determination regarding the parties’ intent, the court
cited King v. Colville-King, Superior Court, judicial district of Waterbury,
Docket No. FA-XX-XXXXXXX-S (February 20, 2015), and Upton v. Upton, Supe-
rior Court, judicial district of Fairfield, Docket No. FA-XX-XXXXXXX-S (May
11, 2007) (clarified in a subsequent memorandum of decision dated February
20, 2008), as situations in which the court prorated alimony payments. Those
cases are distinguishable in that they do not concern the construction of a
separation agreement but, rather, the manner in which the court resolved
payment of alimony from bonuses when events beyond the control of the
parties transpired.
In King v. Colville-King, supra, Superior Court, Docket No. FA-XX-XXXXXXX-
S, the alimony payer’s bonuses initially were to be paid monthly as he
received them. His employer, however, changed its bonus payment schedule
from monthly to annually in the final year in which alimony was to be paid.
The court ordered the final bonus payment to be prorated at the end of the
year to maintain the integrity of the original judgment. In Upton, the trial
court failed to include a schedule of alimony payments in its judgment of
dissolution. It opened the judgment in February, 2008, to rectify the omission
and issued an order regarding regular payments on the basis of the payer’s
base pay and a prorated schedule for bonus compensation. Upton v. Upton,
Superior Court, judicial district of Fairfield, Docket No. FA-XX-XXXXXXX-S
(February 20, 2008).
14
The relevant portion of paragraph 4.1 of the agreement provides: ‘‘Com-
mencing as of the first day of March, 2013, the [defendant] shall pay to the
[plaintiff] . . . until her . . . remarriage . . . the following percentage of
the ‘gross annual compensation’ as hereinafter defined in any calendar year
. . . .’’ The court misstated this portion of paragraph 4.1 in its memorandum
of decision when it wrote that ‘‘the plaintiff was entitled to receive 40 percent
of the defendant’s ‘gross annual compensation in any year,’ as defined in
paragraph 4.3 . . . between $0 and [$1 million] . . . .’’
15
As stated previously, the plaintiff was entitled to receive unallocated
support until she remarried. The only factor in the agreement limiting the
plaintiff’s receipt of unallocated support was a cap of $400,000 in a year in
which the defendant received gross annual compensation of $1 million or
less. The unallocated support that the defendant paid the plaintiff in 2015,
$288,309.51, did not approach the $400,000 cap.
16
In concluding that prorating was called for, the court relied on the
provisions of the agreement requiring the defendant to provide calendar
year-end pay stubs and tax documents. The court minimized the significance
of the defendant’s obligation to provide the plaintiff with evidence of bonus
and severance payments within seven days of receipt or a change in his
base compensation. Those requirements indicate that the defendant was to
apprise the plaintiff of his compensation as he received it. The plaintiff
therefore was able to determine whether she was receiving timely payments.
The plaintiff also has argued on appeal that the purpose of the defendant’s
providing year-end tax documents was for recalculation of child support
under article V of the agreement. See part II of this opinion.
17
‘‘The alimony paid by the [plaintiff] to the [defendant] shall be paid in
three components (monthly . . . and quarterly payments totaling $160,000
based on the first $550,000 of [the plaintiff’s] income, and a year-end [true-
up] alimony payment based on gross income of the [plaintiff] between
$550,000 and $750,000).’’ (Internal quotation marks omitted.) Grogan v.
Penza, supra, 194 Conn. App. 75.
18
‘‘Within [thirty] days after filing of the [defendant’s] tax return in which
the receipt of the restricted stock units are reflected, the parties shall true-
up to share equitably the tax burden on the vesting of the [restricted stock
units].’’ (Internal quotation marks omitted.) Nadel v. Luttinger, supra, 168
Conn. App. 693.
19
General Statutes § 46b-86 (a) provides in relevant part: ‘‘Unless and to
the extent that the decree precludes modification, any final order for the
periodic payment of . . . support . . . may, at any time thereafter, be . . .
modified by the court upon a showing of a substantial change in the circum-
stances of either party or upon a showing that the final order for child
support substantially deviates from the child support guidelines established
pursuant to section 46b-215a, unless there was a specific finding on the
record that the application of the guidelines would be inequitable or inappro-
priate. There shall be a rebuttable presumption that any deviation of less
than fifteen per cent from the child support guidelines is not substantial
and any deviation of fifteen per cent or more from the guidelines is substan-
tial. . . .’’
20
Paragraph 4 of the June, 2016 stipulation provided that the ‘‘defendant’s
obligation to pay the plaintiff $4250 per month shall be reduced by one-
third . . . as each child attains age eighteen, or if a child is still attending
high school when he attains age eighteen . . . until a child completes his
high school education or attains age nineteen . . . whichever event shall
first occur.’’ Paragraph 4 also provided that it ‘‘shall be without prejudice
to either party’s right to file a motion to modify the child support and/or
the amount of the automatic reduction.’’ Under paragraph 5 of the stipulation,
the defendant acknowledged his obligation under the separation agreement
to pay for the children’s education, medical insurance, and unreimbursed
medical expenses.
21
In a footnote, Judge Heller stated that there were no child support
guidelines worksheets in the file for the June, 2016 hearing. The court further
stated that ‘‘[c]hild support guidelines worksheets that were prepared by
counsel in connection with the June, 2016 stipulation were admitted into
evidence as [p]laintiff’s [e]xhibits 10 and 11 [at the September 11, 2018
hearing]. Counsel for the defendant also prepared a child support guidelines
worksheet for the September 11, 2018 hearing based on the parties’ May,
2016 financial affidavits, which was admitted into evidence as [d]efendant’s
exhibit S. The defendant’s presumptive weekly child support obligation
range[d] from $690 to $2115 on these child support guidelines worksheets.
Nothing in the court file reflects the court’s findings in June, 2016, as to
the presumptive weekly child support obligation and any deviation from
the guidelines. The parties offered no evidence in that regard during the
September 11, 2018 hearing.’’ (Emphasis added.)
We have reviewed the record and found no evidence that Judge Tindill
unbundled the unallocated support and determined what portion of the
unallocated support was designated for child support. See Malpeso v. Malp-
eso, supra, 165 Conn. App. 165 (unallocated support orders incorporate
alimony and child support without delineating amounts for each; unallocated
order necessarily includes portion attributable to child support); see also
Tomlinson v. Tomlinson, 305 Conn. 539, 558, 46 A.3d 112 (2012).
Judge Heller’s decision indicates that she did not consider the child sup-
port guideline worksheets submitted by the parties when she determined
that the defendant had not met his burden to demonstrate that there had
been a substantial change in circumstances. Her decision was predicated
on the defendant’s financial affidavits.
22
The court noted the plaintiff’s testimony that her net monthly rental
income may not be accurate on her current financial affidavit and that she
may have made an error in her tax calculations.
23
Both parties submitted child support guideline worksheets at the Sep-
tember, 2018 hearing, but Judge Heller did not indicate which, if either, set
of worksheets she relied on in determining that there had been no substantial
change in circumstances. In a footnote, the court stated that ‘‘[c]hild support
guidelines worksheets that were prepared by counsel in connection with
the June, 2016 stipulation were admitted into evidence as [p]laintiff’s [e]xhib-
its . . . . Counsel for the defendant also prepared a child support guidelines
worksheet for the September 11, 2018 hearing based on the parties’ May,
2016 financial affidavits, which was admitted into evidence as [d]efendant’s
[e]xhibit . . . . The defendant’s presumptive weekly child support obliga-
tion ranges from $690 to $2115 on these child support guidelines worksheets.
Nothing in the court file reflects the court’s findings in June, 2016, as to
the presumptive weekly child support obligation and any deviation from
the guidelines. The parties offered no evidence in that regard during the
September 11, 2018 hearing.’’ Judge Heller also made no finding regarding
the presumptive child support under the guidelines.
24
The court did not specifically find the amount of the defendant’s total
net income in 2017 or earnings to the date of the 2018 hearing. In its
memorandum of decision, the court refers to the figures on the defendant’s
financial affidavits. The court made no finding as to whether it considered
the defendant’s deferred compensation to be income. The defendant retained
his RBS deferred compensation pursuant to the property distribution in the
agreement. Neither party filed a motion for articulation seeking clarification
of the court’s finding.
General Statutes § 46b-82 does not define income. In such instances, we
look to the ordinary meaning of the word. See General Statutes § 1-1 (a);
see also Gay v. Gay, 70 Conn. App. 772, 800 A.2d 1231 (2002), aff’d, 266
Conn. 641, 835 A.2d 1 (2003). Income is defined as ‘‘a gain or recurrent
benefit that is [usually] measured in money and for a given period of time,
derived from capital, labor, or a combination of both, includes gains from
transactions in capital assets, but excludes unrealized advances in value
. . . .’’ (Internal quotation marks omitted.) Gay v. Gay, supra, 778.
25
The court found pursuant to the defendant’s September 11, 2018 financial
affidavit that he had a gross monthly salary of $20,833 and a net monthly
salary of $12,485. He reported gross monthly average commissions of $403,
but he testified that his gross monthly average commissions were actually
$803. His estimated monthly interest and dividend income is $5590. His total
net monthly income is $18,226 according to his current financial affidavit.
He reported total monthly expenses of $40,420. His assets are valued at
$11,044,794. His liabilities total $4909. He also had a contingent debt to Stifel
of $150,000.
26
A trial court has discretion to modify retroactively child support to
different amounts especially during long periods of time while a motion is
pending. See Zahringer v. Zahringer, 124 Conn. App. 672, 689, 6 A.3d 141
(2010). The defendant filed one motion for modification of child support in
January, 2017. He did not amend the motion or file another motion for
modification of child support when he found new employment in August,
2017. The defendant does not claim that he argued for two modified child
support orders during the September, 2018 hearing. He, however, did file
proposed orders in which he proposed that the court determine his presump-
tive support obligation pursuant to the guidelines for the period of time
that he was unemployed, find that he overpaid the plaintiff, and order her
to reimburse him for the overpayment. He also proposed that the court
determine his presumptive child support obligation pursuant to the guide-
lines for the time he found new employment to the date of the September,
2018 hearing, find that he overpaid the plaintiff, and order the plaintiff to
reimburse him for the overpayment.
The court did not address the defendant’s proposed orders in its memoran-
dum of decision. The defendant did not file a motion for articulation, asking
the court to articulate whether it had considered his proposal for separate
orders for the respective periods of time. It is the appellant’s burden to
provide an adequate record for review. See State v. Feliciano, 74 Conn.
App. 391, 402, 812 A.2d 141 (2002), cert. denied, 262 Conn. 952, 817 A.2d
110 (2003). ‘‘In a situation in which the court has not set forth the factual
and legal basis for a discretionary ruling, and the appellant has failed to
seek an articulation in accordance with Practice Book § 66-5, we must
presume that the court acted correctly and can only conclude that there
has been an abuse of discretion if such abuse is apparent on the fact of the
record before us.’’ Bank of New York Mellon v. Horsey, 182 Conn. App. 417,
430, 190 A.3d 105, cert. denied, 330 Conn. 928, 194 A.3d 1195 (2018). Inasmuch
as the defendant sought two modification of child support orders on the
basis of the child support guidelines in a case in which the court did not
find a substantial change in circumstances, we cannot conclude that the
court abused its discretion.
27
In its memorandum of decision, the court did not discuss the defendant’s
rate of return on his investments. We decline to address the claim further.
28
The defendant did not allege that the order that entered in June, 2016,
deviated from the child support guidelines. The defendant’s motion for
modification of child support alleged the ‘‘[d]efendant represents that he
has been terminated from his employment and no longer has any earned
income.’’ He requested that the court enter a child support order consistent
with the current child support guidelines. At the hearing on September 11,
2018, counsel for the defendant argued that the court should enter a child
support order consistent with the income shared model. The defendant did
not argue that the rebuttable presumption that a 15 percent difference in
the presumptive child support amount applied.
29
At the hearing on September 11, 2018, the defendant testified as follows
in response to questions from the plaintiff’s counsel:
‘‘Q.: [W]hen you lost your job in December of 2016, did you do anything
to try to reduce your expenses?
‘‘A.: Do anything?
‘‘Q.: Make any changes.
‘‘A.: I mean I—with regard to my boys, I kind of try to keep a lot of the
stuff status quo, especially like keeping the [nannies] that were around. I
generally thought I was a frugal person by nature. I mean. . . .
‘‘Q.: Okay. So, is it your testimony that there’s nothing specific that you
can recall you did to try to spend less money even during a period when
you weren’t working?
‘‘A.: I probably didn’t do anything to spend less money.
‘‘Q.: On your financial affidavit, your current one . . . . The September
1 . . . 2018. Looking at page 3, letter K, entertain, travel, and visitation.
You see that, sir?
‘‘A.: Yup.
‘‘Q.: Trips and vacations. You list 1750 a month, which is about $21,000
a year. Where did you derive that figure or how did you arrive at that figure?
‘‘A.: For this year or for in general?
‘‘Q.: For inclusion on that affidavit, sir.
‘‘A.: I try to keep a lot of the vacations and stuff I do from year to year
consistent. So I’m sure it’s similar to.
‘‘Q.: When you say vacations from year to year, does that include travel
with your sons as well as not with your sons?
‘‘A.: Yes.’’ (Emphasis added.)
30
As noted, § 46b-86 (a) permits a trial court to modify child support
orders in two alternative cases, to wit: upon a showing of a substantial
change in circumstances or upon a showing that the final order for child
support deviates from the guidelines. In the present case, the defendant
grounded his motion for modification of child support on a substantial
change in circumstances, not a deviation from the child support guidelines.
See footnote 21 of this opinion. At the hearing on the defendant’s motion
for modification, however, the defendant argued for a modification of his
child support obligation because ‘‘our child support guidelines are income
share models.’’ He did not argue that the 15 percent substantial change
provision of § 46b-86 (a) was a factor for the court to consider.
To repeat, the guidelines are relevant only if the movant demonstrates a
substantial change in circumstances or that the existing child support order
substantially deviates from the guidelines, depending on the ground urged
in support of modification. See Mullin v. Mullin, supra, 28 Conn. App. 635–36.
In the present case, the defendant grounded his motion for modification
of child support on a substantial change in circumstances and failed to
demonstrate such a change.