Gabriel v. Gabriel

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RICHARD P. GABRIEL v. DIANA K. GABRIEL
(SC 19571)
Rogers, C. J., and Palmer, Zarella, Eveleigh, Robinson, Vertefeuille, Js.
Argued October 11—officially released December 28, 2016*
Kenneth J. Bartschi, with whom were Brendon P.
Levesque and, on the brief, Joseph T. O’Connor, for the
appellant (plaintiff).
Norman A. Roberts II, with whom, on the brief, was
Tara C. Dugo, for the appellee (defendant).
Opinion
EVELEIGH, J. The plaintiff, Richard P. Gabriel,
appeals from the judgment of the Appellate Court,
which reversed the judgment of the trial court granting
his motion for modification of unallocated alimony and
support, and denying the motion for contempt filed
against him by the defendant, Diana K. Gabriel. On
appeal, the plaintiff claims that the Appellate Court
incorrectly reversed the judgment of the trial court.
Specifically, the plaintiff asserts that the Appellate
Court incorrectly concluded that the trial court improp-
erly: (1) denied the defendant’s motion for contempt,
which was based on the plaintiff’s unilateral reduction
in the unallocated alimony and child support; and (2)
granted the plaintiff’s motion for modification of unallo-
cated alimony and child support. We agree with the
plaintiff’s claim regarding the motion for contempt, but
disagree with his claim regarding the motion for modifi-
cation. Accordingly, we affirm in part and reverse in
part the judgment of the Appellate Court.
The Appellate Court opinion sets forth the following
facts and procedural history: ‘‘The plaintiff and the
defendant were married on July 1, 1995, and three chil-
dren were born of the marriage. On April 7, 2011, the
court dissolved the parties’ marriage. The court incor-
porated the parties’ separation agreement into its judg-
ment. The parties’ separation agreement also
incorporated a July 21, 2010 parenting plan, in which
the parties agreed to share joint physical and legal cus-
tody of the children, with primary physical custody also
shared. The agreement also provided for unallocated
alimony and support from January 1, 2011 to December
31, 2015. The alimony was nonmodifiable by the defen-
dant as to amount and duration. The plaintiff, however,
had the right to seek a modification of alimony on the
basis of a substantial change in circumstances, so long
as those circumstances were not based on the defen-
dant’s cohabitation or an increase in the defendant’s
earnings up to $100,000.
‘‘On May 1, 2012, the parties entered into a postjudg-
ment parenting plan because the defendant was relocat-
ing to California, and the plaintiff did not want the
defendant to take the children with her. Pursuant to
this plan, which the court accepted, both parties contin-
ued to share ‘joint legal and physical custody of the
minor children,’ but the children primarily would reside
with the plaintiff in Connecticut. The parenting plan
also granted the defendant liberal visitation, including
either the children’s February or April vacation and
a substantial portion of their summer vacation. The
parenting plan was contingent on the defendant moving
to California and was void if she stayed in Connecticut.
The parenting plan did not address the issue of child
support, and the court did not raise that issue during
the hearing on the parenting plan.
‘‘On June 28, 2012, the plaintiff filed a motion for
modification of child support, asserting that ‘[t]he finan-
cial circumstances of the parties have changed as a
result of the defendant’s relocation. [The defendant] no
longer has primary residential custody of the children
and is no longer primarily responsible for their financial
needs. The [plaintiff] now has custody and primary
responsibility for all three minor children.’ On October
5, 2012, without permission from the court, the plaintiff
unilaterally decreased his payments to the defendant
from $54,666.66 per month to $20,000 per month. In
response, the defendant filed a motion for contempt,
alleging that the plaintiff improperly had engaged in
self-help by reducing his unallocated support payments
in violation of the existing orders of the court.
‘‘On November 5, 2013, the court granted the plain-
tiff’s postjudgment motion for modification of child sup-
port,1 finding that the parties had stipulated that there
had been a substantial change in circumstances. The
court also found that the defendant’s financial needs
had been reduced significantly by her move to Califor-
nia and her cohabitation with a man who was paying
a portion of her household expenses. Accordingly, the
court reduced the plaintiff’s alimony payments to
$20,000 per month. On the basis of the plaintiff having
assumed primary physical custody of the children, the
court, citing General Statutes § 46b-224,2 also found that
the plaintiff was not in wilful contempt for unilaterally
reducing his unallocated payments to the defendant.’’
(Footnotes altered.) Gabriel v. Gabriel, 159 Conn. App.
805, 807–10, 123 A.3d 453 (2015).
Thereafter, the defendant appealed to the Appellate
Court, claiming that the trial court improperly modified
her alimony award and denied her motion for contempt.
Id., 807. The Appellate Court concluded that the trial
court improperly modified the unallocated alimony and
child support award without considering what portion
of the original award constituted child support and what
portion constituted alimony, improperly failed to con-
sider the child support guidelines when fashioning the
new award, and ‘‘focused on the fact of the defendant’s
cohabitation in modifying the alimony portion of the
unallocated award.’’ Id., 818. The Appellate Court fur-
ther concluded that the trial court improperly denied
the defendant’s motion for contempt because the trial
court had incorrectly concluded that § 46b-224 sus-
pends child support payments ‘‘by operation of law
. . . .’’ (Internal quotation marks omitted.) Id., 820.
Accordingly, the Appellate Court reversed the judgment
of the trial court and remanded the matter for a new
hearing on the plaintiff’s motion for modification and
for reconsideration of the defendant’s motion for
contempt.
Thereafter, we granted the plaintiff’s petition for cer-
tification to appeal, limited to three issues. ‘‘Did the
Appellate Court properly conclude that: [1] The trial
court improperly modified the unallocated alimony and
child support order without first making specific find-
ings under the child support guidelines, when the award
was modified to an alimony award because the obligor
became the primary custodial parent and the recipient
no longer receives child support? [2] The trial court
improperly considered the financial impact of the defen-
dant’s cohabitation in fashioning a modified alimony
award, despite the fact that a substantial change in
circumstances was established on a different basis? [3]
The trial court improperly relied on . . . § 46b-224 in
concluding that the plaintiff had not acted wilfully in
unilaterally reducing the unallocated alimony and sup-
port payments to the defendant after he became the
primary custodial parent?’’ Gabriel v. Gabriel, 319
Conn. 948, 125 A.3d 527 (2015). Additional facts will be
set forth as necessary.
I
The plaintiff first claims that the Appellate Court
incorrectly reversed the judgment of the trial court
denying the defendant’s motion for contempt because,
at the time the plaintiff unilaterally reduced the unallo-
cated alimony and support payment, there was no clear
order of the trial court regarding his support obligation.
The defendant responds that the Appellate Court prop-
erly reversed the judgment of the trial court denying
the motion for contempt filed against the plaintiff. Spe-
cifically, the defendant asserts that the trial court
should have found the plaintiff in contempt for unilater-
ally reducing the unallocated alimony and support pay-
ments to the defendant after he became the primary
custodial parent because the court had not modified its
previous order requiring the plaintiff to pay unallocated
alimony and child support. We agree with the plaintiff
and, accordingly, reverse the judgment of the Appellate
Court with respect to the contempt order.
We begin with general principles and the applicable
standards of review. ‘‘Contempt is a disobedience to
the rules and orders of a court which has power to
punish for such an offense. . . . A contempt judgment
cannot stand when, inter alia, the order a contemnor
is held to have violated is vague and indefinite, or when
the contemnor, through no fault of his own, was unable
to obey the court’s order. . . .
‘‘Consistent with the foregoing, when we review such
a judgment, we first consider the threshold question of
whether the underlying order constituted a court order
that was sufficiently clear and unambiguous so as to
support a judgment of contempt. See Blaydes v.
Blaydes, 187 Conn. 464, 467, 446 A.2d 825 (1982) (civil
contempt may be founded only upon clear and unambig-
uous court order); Dowd v. Dowd, 96 Conn. App. 75,
79, 899 A.2d 76 (first inquiry on review of judgment of
contempt for failure to abide by separation agreement
was whether agreement was clear and unambiguous),
cert. denied, 280 Conn. 907, 907 A.2d 89 (2006). This is
a legal inquiry subject to de novo review. . . .’’
‘‘Second, if we conclude that the underlying court
order was sufficiently clear and unambiguous, we must
then determine whether the trial court abused its discre-
tion in issuing, or refusing to issue, a judgment of con-
tempt, which includes a review of the trial court’s
determination of whether the violation was wilful or
excused by a good faith dispute or misunderstanding.
See Ramin v. Ramin, 281 Conn. 324, 336, 915 A.2d 790
(2007); Eldridge v. Eldridge, 244 Conn. 523, 526–27,
529, 710 A.2d 757 (1998); see also McGuire v. McGuire,
102 Conn. App. 79, 82, 924 A.2d 886 (2007) ([a] finding
of contempt is a question of fact, and our standard of
review is to determine whether the court abused its
discretion in failing to find that the actions or inactions
of the [party] were in contempt of a court order . . .).’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Parisi v. Parisi, 315 Conn. 370, 379–80,
107 A.3d 920 (2015).
Following our well established procedure for
reviewing a decision on a motion for contempt, we must
first decide whether the underlying order in the present
case, ‘‘constituted a court order that was sufficiently
clear and unambiguous so as to support a judgment of
contempt.’’ (Internal quotation marks omitted.) Id., 380.
It is undisputed that the trial court’s initial order imple-
menting the parties’ separation agreement and requiring
the plaintiff to pay unallocated alimony and child sup-
port in the amount of $54,666.66 monthly until Decem-
ber 1, 2015, was a clear order of the court. Therefore,
resolution of this appeal requires us to decide whether
this initial order remained sufficiently clear and unam-
biguous at the time the plaintiff unilaterally reduced
his payment so as to support a judgment of contempt.
The plaintiff filed a motion for modification of the
unallocated alimony and child support payments due
to a substantial change of circumstances on June 28,
2012. Specifically, the plaintiff asserted that ‘‘the finan-
cial circumstances of the parties have changed as a
result of the defendant’s relocation. [The defendant] no
longer has primary residential custody of the children
and is no longer primarily responsible for their financial
needs. The [plaintiff] now has custody and primary
responsibility for all three minor children.’’ Both the
trial court and the Appellate Court concluded that the
plaintiff’s filing of the motion for modification triggered
§ 46b-224. Gabriel v. Gabriel, supra, 159 Conn. App.
820–21. We agree.
Section 46b-224 provides in relevant part: ‘‘Whenever
. . . the Superior Court, in a family relations matter
. . . orders a change or transfer of the guardianship or
custody of a child who is the subject of a preexisting
support order, and the court makes no finding with
respect to such support order, such guardianship or
custody order shall operate to: (1) Suspend the support
order if guardianship or custody is transferred to the
obligor under the support order; or (2) modify the payee
of the support order to be the person or entity awarded
guardianship or custody of the child by the court, if
such person or entity is other than the obligor under
the support order.’’
In Tomlinson v. Tomlinson, 305 Conn. 539, 550, 46
A.3d 112 (2012), this court explained the language of
§ 46b-224 as follows: ‘‘Use of the term ‘whenever’ indi-
cates that the statute applies every time in which the
two specified conditions are met without other restric-
tion. Similarly, the use of the term ‘shall’ denotes a
mandatory term, suggesting that the suspension or redi-
rection of support occurs by operation of law. See Hall
Manor Owner’s Assn. v. West Haven, 212 Conn. 147,
153, 561 A.2d 1373 (1989) (when legislature has used
word ‘shall,’ ‘[i]f it is a matter of convenience, the statu-
tory provision is directory; if it is a matter of substance,
the statutory provision is mandatory’). Together, this
language signifies that § 46b-224 is invoked upon satis-
faction of the two specified conditions automatically
. . . .’’
In the present case, the two specified conditions were
satisfied, namely, the trial court transferred primary
physical custody to the plaintiff in May, 2012, and made
no determination with respect to the preexisting unallo-
cated alimony and child support order. Therefore,
§ 46b-224 was automatically invoked and the portion of
the preexisting unallocated alimony and child support
order that was attributable to child support was sus-
pended. As a result, at the time that the plaintiff unilater-
ally reduced his payment to the defendant in October,
2012, there was no longer a clear and unambiguous
order of the trial court requiring him to pay a specific
amount of money to the defendant. To the contrary,
because the original order of the court provided for
unallocated alimony and support and an unspecified
portion of that order was subsequently suspended,
there was no longer a clear and unambiguous order of
the trial court regarding the plaintiff’s support obli-
gations.
It is well established that ‘‘[c]ivil contempt is commit-
ted when a person violates an order of court which
requires that person in specific and definite language
to do or refrain from doing an act or series of acts.
. . . Whether an order is sufficiently clear and unam-
biguous is a necessary prerequisite for a finding of con-
tempt because [t]he contempt remedy is particularly
harsh . . . and may be founded solely upon some clear
and express direction of the court. . . . One cannot be
placed in contempt for failure to read the court’s mind.
. . . This is a long-standing tenet of the law of con-
tempt. . . . It is also logically sound that a person must
not be found in contempt of a court order when ambigu-
ity either renders compliance with the order impossible,
because it is not clear enough to put a reasonable person
on notice of what is required for compliance, or makes
the order susceptible to a court’s arbitrary interpreta-
tion of whether a party is in compliance with the order.’’
(Citations omitted; emphasis altered; internal quotation
marks omitted.) In re Leah S., 284 Conn. 685, 695, 935
A.2d 1021 (2007); see also Blaydes v. Blaydes, supra,
187 Conn. 467; Baldwin v. Miles, 58 Conn. 496, 502, 20
A. 618 (1890).3
In light of the applicability of § 46b-224 in the present
case, at the time that the plaintiff unilaterally reduced
his payment to the defendant, there was no clear order
of support. Indeed, the plaintiff had taken all reasonable
steps to determine what his obligations to the defendant
were at the time he unilaterally reduced his payments—
namely, by filing a motion for modification of the sup-
port order due to the change in primary physical cus-
tody. On the basis of these facts, we cannot conclude
as a matter of law that the underlying order was suffi-
ciently clear so as to support a finding of contempt.4
Accordingly, we reverse the judgment of the Appellate
Court as it relates to the motion for contempt.5
II
The plaintiff next claims that the Appellate Court
incorrectly concluded that the trial court improperly
modified the unallocated alimony and child support
award. Specifically, the plaintiff claims that the Appel-
late Court incorrectly concluded that the trial court
failed to consider what portion of the unallocated award
constituted child support and what portion constituted
alimony. In response, the defendant asserts that the
Appellate Court properly concluded that the trial court
incorrectly modified the unallocated award without
first making specific findings regarding what portion
of the unallocated support order went to child support.
We agree with the defendant that the trial court failed
to determine what portion of the unallocated award
constituted child support and, accordingly, affirm the
judgment of the Appellate Court as it relates to the
modification of the unallocated award.
We begin by setting forth the applicable standard of
review. ‘‘The well settled standard of review in domestic
relations cases is that this court will not disturb trial
court orders unless the trial court has abused its legal
discretion or its findings have no reasonable basis in
the facts. . . . As has often been explained, the founda-
tion for this standard is that the trial court is in a clearly
advantageous position to assess the personal factors
significant to a domestic relations case. . . . Simms
v. Simms, 283 Conn. 494, 502, 927 A.2d 894 (2007),
quoting Borkowski v. Borkowski, 228 Conn. 729, 739,
638 A.2d 1060 (1994). In determining whether a trial
court has abused its broad discretion in domestic rela-
tions matters, we allow every reasonable presumption
in favor of the correctness of its action. . . . Bender
v. Bender, 258 Conn. 733, 740, 785 A.2d 197 (2001).
Notwithstanding the great deference accorded the trial
court in dissolution proceedings, a trial court’s ruling
. . . may be reversed if, in the exercise of its discretion,
the trial court applies the wrong standard of law. Bor-
kowski v. Borkowski, supra, 740. . . . See In re T.K.,
105 Conn. App. 502, 506, 939 A.2d 9 ([t]he application
of a statute to a particular set of facts is a question of
law to which we apply a plenary standard of review),
cert. denied, 286 Conn. 914, 945 A.2d 976 (2008); Unkel-
bach v. McNary, 244 Conn. 350, 357, 710 A.2d 717 (1998)
(interpretation of statutory scheme that governs child
support determinations constitutes question of law).’’
(Internal quotation marks omitted.) LaFrance v. Lod-
mell, 322 Conn. 828, 842–43, 144 A.3d 373 (2016); see
also Tuckman v. Tuckman, 308 Conn. 194, 200, 61 A.3d
449 (2013).
A
The plaintiff claims that the Appellate Court incor-
rectly concluded that the trial court should have made
a specific finding regarding what portion of the initial
unallocated order constituted child support before
modifying the award. We disagree with the plaintiff.
As this court explained in Tomlinson, ‘‘[e]ven though
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 attribut-
able to child support in an amount sufficient to satisfy
the guidelines. Because the child support portion of an
otherwise nonmodifiable award can be modified upon
a change in custody . . . but the alimony portion can-
not, a trial court must determine what part of the origi-
nal decree constituted modifiable child support and
what part constituted nonmodifiable alimony. Given
that [t]he original decree [of dissolution] . . . is an
adjudication by the trial court as to what is right and
proper at the time it is entered . . . the trial court must
first determine what portion of the unallocated order
represented the child support component at the time
of the dissolution. Additionally, because questions
involving modification of alimony and support depend
. . . on conditions as they exist at the time of the hear-
ing . . . it is necessary to evaluate the parties’ present
circumstances in light of the passage of time since the
trial court’s original calculation.’’ (Emphasis omitted;
citations omitted; internal quotation marks omitted.)
Tomlinson v. Tomlinson, supra, 305 Conn. 558; see also
Borkowski v. Borkowski, supra, 228 Conn. 737; Milot
v. Milot, 174 Conn. 3, 5, 381 A.2d 528 (1977).
This court has consistently explained that ‘‘[t]he
guidelines incorporate these statutory rules and contain
a ‘schedule’ for calculating ‘the basic child support obli-
gation,’ which is based on the number of children in
the family and the combined net weekly income of the
parents. Regs., Conn. State Agencies § 46b-215a-2b (f).
Consistent with General Statutes § 46b-215b (a), the
guidelines provide that the support amounts calculated
thereunder are the correct amounts to be ordered by
the court unless rebutted by a specific finding on the
record that the presumptive support amount would be
inequitable or inappropriate. Regs., Conn. State Agen-
cies § 46b-215a-3 (a). The finding must include a state-
ment of the presumptive support amount and explain
how application of the deviation criteria justifies the
variance. Id.; see also General Statutes § 46b-215b (a).’’
(Emphasis omitted.) Kiniry v. Kiniry, 299 Conn. 308,
319–20, 9 A.3d 708 (2010). In the present case, the trial
court that issued the original order requiring the plain-
tiff to pay unallocated alimony and child support did
not make any findings regarding the amount of child
support required under the guidelines or any basis
for deviation.6
The absence of a specific finding from the court that
issued the original order as to the amount of child
support did not prevent the trial court from ruling on
the plaintiff’s motion for modification. Instead, as this
court has explained in related contexts, if the court
issuing the original support order fails to make the
necessary specific findings, the appropriate remedy is
for the court hearing the motion for modification to
make the necessary findings. For instance, in Tanzman
v. Meurer, 309 Conn. 105, 117–19, 70 A.3d 13 (2013), this
court considered whether the trial court appropriately
denied a motion for modification of an unallocated ali-
mony and child support order on the basis of a change
in the obligor’s earning capacity. In Tanzman, the trial
court had failed to determine the obligor’s earning
capacity at the time it entered the initial order requiring
him to pay unallocated alimony and child support and
then denied the subsequent motion to modify. Id., 119.
This court concluded that ‘‘because the trial court in
the present case could not reasonably have concluded
that there had been no substantial change in the plain-
tiff’s earning capacity between the time of the original
financial award and the motion for modification without
ever having determined the plaintiff’s specific earning
capacity, the trial court abused its discretion when it
denied the motion for modification.’’ Id., 117. We further
explained that ‘‘the remedy when the trial court has
indicated that it failed to determine the specific amount
of a party’s earning capacity at the time of the original
financial award is for the trial court to conduct a new
hearing on the issue. Just as a party is not bound by
an injunction that is so vague that men of common
intelligence must necessarily guess at its meaning and
differ as to its application . . . a party to a marital
dissolution proceeding cannot be forever bound by a
finding that is so vague that no reviewing court could
reasonably ascertain whether the finding and, by exten-
sion, the legal conclusions based on the finding, were
correct, and no trial court could ever reasonably deter-
mine whether there has been a substantial change in
circumstances for purposes of ruling on a motion for
modification pursuant to [General Statutes] § 46b-86.’’
(Citation omitted; footnote omitted; internal quotation
marks omitted.) Id., 118–19; see also Emhart Indus-
tries, Inc. v. Amalgamated Local Union 376, U.A.W.,
190 Conn. 371, 409, 461 A.2d 422 (1983). Accordingly,
we concluded that ‘‘the matter must be remanded to
the trial court for a new hearing on the plaintiff’s motion
for modification at which the trial court should deter-
mine, based on evidence presented by the parties, the
specific amount of the plaintiff’s earning capacity at
the time of the original financial award. In addition,
because the trial court did not determine the specific
amount of the plaintiff’s earning capacity at the time
that he filed his motion for modification, the court must
also determine that amount.’’ (Footnote omitted.) Tanz-
man v. Meurer, supra, 120–21.
Similarly, in the present case, in order to address the
plaintiff’s motion for modification, it was necessary for
the trial court to know how much of the original award
of unallocated alimony and support was attributed to
child support. Because the court that issued the original
support order did not make such a finding, the trial
court was required to make that determination before
ruling on the motion for modification. The trial court
did not make any finding regarding what amount of
the initial unallocated alimony and support award was
attributable to child support. Without knowing what
portion of the award was attributable to child support,
the trial court could not properly decide the motion
for modification.
Accordingly, we conclude that the Appellate Court
correctly determined that the trial court improperly
modified the unallocated alimony and support order.
On remand, the trial court should conduct a hearing to
determine, based on evidence presented by the parties,
the specific amount of child support required at the
time the defendant had primary physical custody of the
parties’ children. This amount should then be sub-
tracted from the original unallocated order to determine
a new alimony award based on the change in circum-
stances.
B
The plaintiff claims that the Appellate Court incor-
rectly concluded that the trial court should not have
considered the defendant’s cohabitation in modifying
the unallocated award. We consider this issue to the
extent that it is likely to arise again on remand, and
conclude that, on remand, the trial court should not
consider any information related to the defendant’s
cohabitation.7
‘‘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 con-
tract and construed in accordance with the general
principles governing contracts. . . . When construing
a contract, we seek to determine the intent of the parties
from the language used interpreted in the light of the
situation of the parties and the circumstances con-
nected 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 lan-
guage 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 possible,
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 where
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.
. . . The 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. . . . If the language of the contract is suscepti-
ble to more than one reasonable interpretation, the
contract is ambiguous.’’ (Internal quotation marks omit-
ted.) Nation-Bailey v. Bailey, 316 Conn. 182, 191–92,
112 A.3d 144 (2015); see also Parisi v. Parisi, supra,
315 Conn. 383–84.
In ruling on the motion for modification in the present
case, the trial court found that ‘‘[t]he defendant made
a downward adjustment in her financial affidavit rela-
tive to her expenses to account for [her new living
arrangements] which . . . provides her with [one-half]
of their living expenses.’’ The Appellate Court con-
cluded that the trial court’s consideration of the defen-
dant’s change in financial circumstances resulting from
her cohabitation was improper because it violated the
clear terms of the parties’ agreement. Gabriel v. Gabriel,
supra, 159 Conn. App. 814–15. We agree with the Appel-
late Court.
It is undisputed that the parties’ entered into a separa-
tion agreement, in which they agreed, in relevant part:
‘‘The amount of alimony shall be [nonmodifiable] as
to both amount and duration by the [defendant], for
any reason.
‘‘The [plaintiff] retains his right to seek a modification
of alimony based upon a substantial change of circum-
stances. The foregoing notwithstanding, for so long as
he is paying alimony in accordance with the above
percentages, the [plaintiff] waives the right to seek to
modify the [defendant’s] alimony based upon her cohab-
itation. He further waives the right to seek a modifica-
tion of this alimony obligation based solely upon the
[defendant’s] earnings, so long as her earnings do not
exceed $100,000 per annum.’’
We agree with the Appellate Court that ‘‘the terms
of the agreement, as it relates to the unallocated alimony
and support payments, are unambiguous. The
agreement clearly states that the unallocated alimony
and support payments are ‘for [the defendant’s] support’
and are nonmodifiable by the defendant as to both
amount and duration, but are modifiable by the plaintiff
upon a substantial change in circumstances, not includ-
ing the defendant’s cohabitation or her earnings up
to $100,000.’’ (Emphasis in original.) Gabriel v. Gabriel,
supra, 159 Conn. App. 813.
The parties’ agreement clearly prohibited the plaintiff
from seeking modification of alimony on the basis of
the defendant’s cohabitation. In light of the clear terms
of the parties’ agreement, therefore, we conclude that
any consideration of the defendant’s cohabitation in
ruling on a motion for modification would violate the
terms of the parties’ agreement. Accordingly, on
remand, in making its determination of alimony pursu-
ant to the factors in General Statutes § 46b-82,8 we con-
clude that the trial court cannot consider any
information related to the defendant’s cohabitation,
including any change to her financial situation that is
a result of the cohabitation.
The judgment of the Appellate Court is reversed with
respect to the defendant’s motion for contempt and the
case is remanded to that court with direction to render
judgment affirming the judgment of the trial court. The
judgment of the Appellate Court is affirmed with respect
to the plaintiff’s motion for modification, and the case
is remanded to that court with direction to remand the
case to the trial court for further proceedings consistent
with this opinion.
In this opinion the other justices concurred.
* [Slip date], 2016, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
See footnote 7 of this opinion.
2
General Statutes § 46b-224 provides in relevant part: ‘‘Whenever . . .
the Superior Court, in a family relations matter . . . orders a change or
transfer of the guardianship or custody of a child who is the subject of a
preexisting support order, and the court makes no finding with respect to
such support order, such guardianship or custody order shall operate to:
(1) Suspend the support order if guardianship or custody is transferred to
the obligor under the support order; or (2) modify the payee of the support
order to be the person or entity awarded guardianship or custody of the
child by the court, if such person or entity is other than the obligor under
the support order.’’
3
The defendant asserts that Miller v. Miller, 181 Conn. 610, 436 A.2d 279
(1980), provides the appropriate framework for reviewing the defendant’s
claim regarding her motion for contempt. We disagree. Miller did not involve
a motion for contempt, but instead addressed whether the trial court had
jurisdiction to award child support for a child who had reached the age of
majority while the dissolution action was pending. Id., 613–14. Accordingly,
we find Miller to be inapposite to the present case.
4
Because we conclude that there was not a ‘‘court order that was suffi-
ciently clear and unambiguous so as to support a judgment of contempt,’’ we
need not reach the question of whether the trial court abused its discretion in
determining ‘‘whether the violation was wilful or excused by a good faith
dispute or misunderstanding.’’ Parisi v. Parisi, supra, 315 Conn. 380.
5
The Appellate Court concluded that, although § 46b-224 applied and
operated to suspend the plaintiff’s child support payments to the defendant,
‘‘it certainly would not give a party the right to suspend his alimony obliga-
tion. Under the circumstances of this case, it is clear from the court’s
memorandum of decision that the court reduced the defendant’s alimony
award and the child support award in the combined total of the plaintiff’s
unilateral reduction. This demonstrates that the plaintiff’s unilateral reduc-
tion, in the opinion of the trial court, was not solely in the amount of his
court-ordered child support. In other words, relying on § 46b-224, the court
found it was not contemptuous for the plaintiff to have suspended some
portion of the defendant’s alimony award. We conclude that this was an
improper reliance on § 46b-224.’’ Gabriel v. Gabriel, supra, 159 Conn. App.
821. We disagree. As we have explained herein, the defendant’s motion
for contempt fails on the first prong of our inquiry—whether there was a
sufficiently clear and unambiguous order of the trial court upon which to
base a finding of contempt. We, therefore, need not address whether the
amount by which the plaintiff reduced his support was proper in order
to conclude that the trial court correctly denied the defendant’s motion
for contempt.
6
The plaintiff asserts that the trial court was not required to apply the
child support guidelines in ruling on the plaintiff’s motion for modification
because the child support guidelines do not apply to alimony orders and
the defendant’s alimony was the only financial order that was required at that
time. Although we agree with the plaintiff that the child support guidelines do
not apply to an alimony award, as we explain herein, when the trial court
in the present case was considering the motion for modification of the
unallocated child support and alimony award, it was necessary for the trial
court to consider the guidelines and make a finding as to the portion of the
original award that was attributable to child support in order to fashion a
new alimony award based on the change in circumstances.
7
Although we note that the motion for modification was entitled as a
motion for modification of child support, the record reflects that it was
treated as a motion for modification of both child support and alimony.
8
General Statutes § 46b-82 provides: ‘‘(a) At the time of entering the
decree, the Superior Court may order either of the parties to pay alimony
to the other, in addition to or in lieu of an award pursuant to section 46b-
81. The order may direct that security be given therefor on such terms as
the court may deem desirable, including an order pursuant to subsection
(b) of this section or an order to either party to contract with a third party
for periodic payments or payments contingent on a life to the other party.
The court may order that a party obtain life insurance as such security
unless such party proves, by a preponderance of the evidence, that such
insurance is not available to such party, such party is unable to pay the
cost of such insurance or such party is uninsurable. In determining whether
alimony shall be awarded, and the duration and amount of the award, the
court shall consider the evidence presented by each party and shall consider
the length of the marriage, the causes for the annulment, dissolution of the
marriage or legal separation, the age, health, station, occupation, amount
and sources of income, earning capacity, vocational skills, education,
employability, estate and needs of each of the parties and the award, if any,
which the court may make pursuant to section 46b-81, and, in the case of
a parent to whom the custody of minor children has been awarded, the
desirability and feasibility of such parent’s securing employment.
‘‘(b) If the court, following a trial or hearing on the merits, enters an order
pursuant to subsection (a) of this section, or section 46b-86, and such
order by its terms will terminate only upon the death of either party or the
remarriage of the alimony recipient, the court shall articulate with specificity
the basis for such order.
‘‘(c) Any postjudgment procedure afforded by chapter 906 shall be avail-
able to secure the present and future financial interests of a party in connec-
tion with a final order for the periodic payment of alimony.’’