Budrawich v. Budrawich

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BUDRAWICH v. BUDRAWICH—CONCURRENCE
BEAR, J., concurring and dissenting. I concur in the
results reached by the majority with the exception of
part II B of its opinion, which addresses an argument
that the trial court improperly construed one sentence
in the alimony provision of the judgment, which pro-
vides that ‘‘[t]he [defendant, Edward Budrawich, Jr.]
shall pay to the [plaintiff, Kathleen Budrawich] the sum
of $1.00 per year as alimony. Payment shall be made,
during the [defendant’s] lifetime and until the [plain-
tiff’s] death, remarriage, or suspension of alimony due
to cohabitation pursuant to the statute and case law or
November 28, 2022. Alimony shall be modifiable as to
amount if the [plaintiff] earns less than $100,000 per
year. Alimony shall not be modifiable as to term.’’ I
disagree with the majority’s legal interpretation of the
sentence ‘‘[a]limony shall be modifiable as to amount
if the [plaintiff] earns less than $100,000 per year.’’1 The
majority explains its reason for including part II of its
opinion: ‘‘Because the question of how the dissolution
court’s alimony order should be interpreted will arise
on remand, we elucidate the order, as it is a question
of legal interpretation. Language from the trial court’s
memorandum of decision on the plaintiff’s motion to
modify can be construed as suggesting that it interpre-
ted the alimony provision as directing that the plaintiff
automatically satisfied, or was relieved from, her obliga-
tion of showing a substantial change in circumstances
by virtue of her earning less than $100,000 per year. We
demonstrate, in part II B of this opinion, why this read-
ing of the alimony provision is legally improper.’’ I con-
clude, instead, that the court properly determined that
the substantial change in circumstances requirement
was satisfied because her income, in fact, fell below
the $100,000 per year threshold.
The plaintiff’s motion for modification was based on
her income being reduced to less than $100,000 per
year. The provision that ‘‘[a]limony shall be modifiable
as to amount if the [plaintiff] earns less than $100,000
per year’’ was applicable to her motion. The trial court
interpreted that provision as follows: ‘‘[T]he plaintiff
would receive alimony in the amount of $1 per year until
November 28, 2022, and that if the plaintiff’s income
fell below $100,000 annually that would constitute a
substantial change in circumstances as a predicate to
modification.’’ The majority instructs the trial court on
remand that a finding of a substantial change in circum-
stances is required. I agree with the trial court’s inter-
pretation of the provision and I disagree with the major-
ity that such a finding is necessary if the plaintiff proves
that her income, at the time of the filing of her motion
to modify, was less than $100,000 per year.
I accept the majority’s statement of the standard of
review that we must apply in construction of the judg-
ment: ‘‘Because [t]he construction of a judgment is a
question of law for the court . . . our review of the
. . . claim is plenary. As a general rule, judgments are
to be construed in the same fashion as other written
instruments. . . . The determinative factor is the inten-
tion of the court as gathered from all parts of the judg-
ment. . . . The interpretation of a judgment may
involve the circumstances surrounding the making of
the judgment. . . . Effect must be given to that which
is clearly implied as well as to that which is expressed.
. . . The judgment should admit of a consistent con-
struction as a whole.’’ (Internal quotation marks omit-
ted.) Perry v. Perry, 156 Conn. App. 587, 593, 113 A.3d
132, cert. denied, 317 Conn. 906, 114 A.3d 1220 (2015).
If the provision language, ‘‘[a]limony shall be modifi-
able as to amount if the [plaintiff] earns less than
$100,000 per year,’’ did not appear in the judgment, the
language of General Statutes § 46b-86 would require a
finding by the court that a reduction of the plaintiff’s
income to a level below $100,000 in the context of the
facts existing at the time of the filing of the motion
constituted a substantial change in circumstances. I
accept the majority’s statement of the law in that regard:
‘‘Section 46b-86 (a) provides in relevant part: ‘Unless
and to the extent that the decree precludes modifica-
tion, any final order for the periodic payment of perma-
nent alimony or support . . . may, at any time there-
after, be . . . modified by the court upon a showing
of a substantial change in the circumstances of either
party . . . .’ Burke v. Burke, 94 Conn. App. 416, 422,
892 A.2d 964 (2006).’’
A court in its judgment can determine that the occur-
rence of an event, in and of itself, will constitute a
substantial change in circumstances. This court in other
appeals has determined that a trial court has the power
to do that, as recognized by the majority: ‘‘This court
previously has construed certain language contained in
a separation agreement to relieve the party seeking to
modify alimony of the statutorily mandated burden of
demonstrating that a substantial change in circum-
stances has occurred. See Steller v. Steller, 181 Conn.
App. 581, 584 n.1, 187 A.3d 1184 (2018); Taylor v. Taylor,
117 Conn. App. 229, 231, 978 A.2d 538, cert. denied, 294
Conn. 915, 983 A.2d 852 (2009).’’ The provision placed
by the court in its judgment has that effect: ‘‘Alimony
shall be modifiable as to amount if the [plaintiff] earns
less than $100,000 per year.’’ It is our duty to give effect
to all of the language in the judgment, including this
language. See, e.g., Bauer v. Bauer, 308 Conn. 124, 131,
60 A.3d 950 (2013); Lashgari v. Lashgari, 197 Conn.
189, 196–97, 496 A.2d 491 (1985); see also Almeida v.
Almeida, 190 Conn. App. 760, 769, 213 A.3d 28 (2019)
(‘‘in construing a marital dissolution judgment, the
court’s judgment must be interpreted as a whole’’).
In the present case, the majority focuses on the fact
that the alimony provision does not contain language
(1) allowing for a ‘‘second look,’’ (2) stating that the
occurrence of a specified event shall be considered a
substantial change in circumstances, or (3) stating that
a party shall have the right to seek a modification of
alimony upon the occurrence of a specified event with-
out showing a substantial change in circumstances, as
was provided in Steller and Taylor, and that the absence
of such language requires the plaintiff to show that there
was a substantial change in circumstances after her
salary fell below $100,000. Such a reading from Steller
and Taylor is too narrow.
As the majority recounts, specifically with regard to
Taylor, this court rejected the argument that, ‘‘because
the agreement failed to include language that after the
events mentioned, alimony would be subject to a de
novo review, the second look should be based on a
substantial change of circumstances.’’ Taylor v. Taylor,
supra, 117 Conn. App. 232. Instead, this court concluded
that ‘‘the separation agreement permitted the court to
take a fresh look at the parties’ financial circumstances
either after the plaintiff reached his sixty-fifth birthday
or after the death of the defendant’s father.’’ Id., 233.
This court continued that, ‘‘[i]f that was not the intent
of the parties, the second look language would have
been superfluous because the agreement provided that
alimony could be modified at any time if a substantial
change of circumstances occurred. The agreement,
however, specifically provides that on the happening of
either of the two previously mentioned events, alimony
may be given a second look. We conclude, therefore,
that this language permits a de novo review of the
plaintiff’s alimony obligation.’’ Id. The court further con-
cluded that, ‘‘by the terms of the separation agreement,
the parties had already agreed on events that would
constitute a substantial change. The parties agreed that
once the plaintiff became sixty-five or the defendant’s
father died, those circumstances in and of themselves
would trigger a second look at the alimony order. We
conclude, therefore, that the court correctly determined
that it did not need to find a substantial change of cir-
cumstances and properly conducted a de novo review.’’
Id., 233–34. Although Taylor involved a separation agree-
ment incorporated into a judgment, and not a judgment
of the court after a contested dissolution trial, the rules
of interpretation to be applied to the relevant language
are the same. See Bauer v. Bauer, supra, 308 Conn. 131;
Barnard v. Barnard, 214 Conn. 99, 109–10, 570 A.2d
690 (1990).
In the present case, although the sentence, ‘‘[a]limony
shall be modifiable as to amount if the [plaintiff] earns
less than $100,000 per year,’’ does not specifically state
that a second look is permitted without a substantial
change in circumstances or that the plaintiff’s earnings
of less than $100,000 per year constitutes a substantial
change in circumstances, the specific language and
meaning of the sentence makes the addition of those
terms unnecessary. See Perry v. Perry, supra, 156 Conn.
App. 593 (‘‘[e]ffect must be given to that which is clearly
implied as well as to that which is expressed’’ (internal
quotation marks omitted)); see also Fisher v. Big Y
Foods, Inc., 298 Conn. 414, 424–25, 3 A.3d 919 (2010)
(‘‘an opinion must be read as a whole without particular
portions read in isolation’’); cf. Halperin v. Halperin,
196 Conn. App. 603, 615, A.3d (2020) (‘‘intent
. . . is to be ascertained by a fair and reasonable con-
struction of the written words and . . . the language
used must be accorded its common, natural, and ordi-
nary meaning and usage’’ (internal quotation marks
omitted)).
I, therefore, conclude that the court properly interpre-
ted the provision placed in the judgment by the dissolu-
tion court to waive the requirement that the plaintiff
prove a substantial change in circumstances other than
the fact of a reduction of her annual income below
$100,000. I do not disagree with the remand for a new
hearing for the reasons set forth in part II A of the
majority opinion. I disagree, rather, with the majority’s
interpretation of the sentence, ‘‘[a]limony shall be modi-
fiable as to amount if the wife earns less than $100,000
per year.’’ I would instruct the court on remand to
determine whether the plaintiff proved that her income
at the time of the filing of her motion to modify alimony
was less than $100,000 per year and, if so, to proceed
to the determination of alimony pursuant to General
Statutes § 46b-82.
1
I specifically disagree with the majority’s assertions, analysis and conclu-
sions in these two paragraphs set forth in part II B of its opinion: ‘‘In contrast
with the language considered in Steller [v. Steller, 181 Conn. App. 581, 187
A.3d 1184 (2018)] and Taylor [v. Taylor, 117 Conn. App. 229, 978 A.2d 538,
cert. denied, 294 Conn. 915, 983 A.2d 852 (2009)], the relevant language of
the present alimony provision states only that ‘[a]limony shall be modifiable
as to amount if the wife earns less than $100,000 per year. Alimony shall
not be modifiable as to term.’ The alimony provision does not permit a
‘second look’ upon the occurrence of a specified event, does not state that
the occurrence of a specified event shall be considered a substantial change
in circumstances, or that a party shall have the right to seek a modification of
alimony upon occurrence of a specified event without showing a substantial
change in circumstances.
‘‘Nor does the alimony provision give any other indication that it was
intended by the dissolution court to permit the plaintiff to obtain a de
novo review of the defendant’s alimony obligation without first showing a
substantial change in circumstances. In the absence of such indication, the
relevant language of the alimony provision addresses only the issue of
whether the alimony award is modifiable or nonmodifiable. Expressed in
the alimony provision is the dissolution court’s intention to preclude modifi-
cation as to the term of the alimony and permit modification as to the
amount, but only if the plaintiff’s earnings fall below $100,000 per year.
Accordingly, the alimony provision does not relieve the plaintiff of her
burden to demonstrate a substantial change in circumstances.’’