Opinion
No. FA-07-4032372-S
December 10, 2010
MEMORANDUM OF DECISION
I BACKGROUND
The parties have filed multiple motions and objections thereto, now pending before the court, as follows: The plaintiff's Motion for Contempt — Post-Judgment dated April 26, 2010 (no. 128); Motion to Modify Alimony — Post-Judgment dated May 27, 2010 (no. 130); Motion for Contempt — Post-Judgment dated August 27, 2010 (no. 149); the defendant's Motion to Modify Child Support dated June 30, 2010 (no. 141) and the plaintiff's Objection thereto dated August 27, 2010 (150); and the parties' respective Motions for Attorneys fees dated November 8, 2010 and November 9, 2010. But for the filing of attorneys fees affidavits, these motions were heard by the court on November 18th and 19th, 2010.
The plaintiff has also requested the court to reserve argument and judgment on her Motion to Reargue dated September 24, 2010 (no. 158), the defendant's Objection thereto dated October 7, 2010 (no. 160), as well as the plaintiff's Motion to Enforce Agreement dated October 13, 2010 (no. 163).
II FACTS
With the assistance of competent counsel, the parties negotiated a collaborative Divorce Settlement Agreement (Agreement), dated March 28, 2008, upon which a judgment of dissolution was entered by the court, Brennan, JTR. The negotiated Agreement is lengthy, detailed and provides for many contingencies contemplated by the parties, including alimony and child support based upon the anticipated, yet potentially fluctuating bonus structure of the defendant's employment contract and the impending legal majority of their two children, Julia Justine Verde, born on August 8, 1991 and David Michael Verde born on April 22, 1995. One of the general purposes of the agreement is to create a self-executing and self-modifying instrument, distributing income through a formula in a manner allowing the parties to anticipate their respective income streams for budgeting purposes, year by year.
At the time of the dissolution, both children were primarily residing with the plaintiff, for which she received child support. Since then, Julia has graduated from high school and turned 18 on August 8, 2009. She is a full-time college student at the University of Massachusetts and David now resides with the defendant by agreement of the parties and as ordered by the court, Taylor, J., on June 9, 2010. The disputes between the parties primarily revolve around the application of the language of the Agreement to the evolving legal and residential status of their children and the precipitous drop in the defendant's anticipated bonus for the 2010 calendar year.
The defendant is an attorney who is employed by Waste Technology Services, Inc. (WTS), a corporation with 40-50 employees. The defendant has known the president of WTS for many more years than his fifteen-year tenure as an employee and he has been elevated to the position of the Director of Environmental Services and General Counsel for the corporation.
The plaintiff holds a Bachelor of Arts Degree and is currently pursuing a Master's Degree in Social Work. At or about the time of the marriage, she was employed as a state employee with the, then known, Department of Mental Retardation. By agreement of the parties, she left the workforce to raise the parties' two children. At the time of the dissolution, both parties reasonably anticipated her future employability, as reflected in the alimony provision of the Agreement. Specifically, the parties agreed that there would be no substantial change in circumstances up to and until the plaintiff earned $25,000, a so-called "safe-harbor provision." The Agreement additionally provides a dollar for dollar reduction of her alimony for any income earned above $25,000, and the defendant is not required to pay alimony pursuant to the formula for income he receives in excess of $375,000. However, despite her efforts over the past two and a half years, and although she is a college graduate, the plaintiff has been unable to find suitable or substantial employment. Therefore, the plaintiff is now approximately 50 years old and has been out of the job market for nearly 20 years raising the children.
See Sections 6.1 and 6.5 of the Agreement, infra.
See Section 6.1 of the Agreement, infra.
The defendant is steadily compensated by his employer with a base salary of $125,000 per year and, in addition, he is regularly compensated with annual bonus payments based upon the performance of WTS during the previous calendar year. Instead of a lump-sum payment, the defendant's bonus is divided and distributed to him in his monthly paycheck. His combined base salary and bonus from employment in 2008 and 2009 has been approximately $365,000 for each of those years.
The Agreement provides for child support and alimony, based upon the application of certain formulas to the defendant's combined base and bonus income. With the application of the formulas during the years of 2008 and 2009, the defendant consistently paid the plaintiff the sum of $4,010.74 per month in child support and $5,139.10 per month in alimony.
Early in 2010, the defendant was informed that he would be losing approximately $150,000 of annual income, based upon the weak performance of WTS in 2009. The defendant immediately notified the plaintiff of the potentially dire effects of this precipitous drop in the income they share. See Exhibit 4.
This anticipated loss of income would have resulted in annual income of approximately $215,000, instead of the previous year's income of $365,000. The defendant's monthly income, however, did not reflect this $150,000 income loss. Instead, the defendant's monthly paycheck was reduced from $30,416.67 to $25,416.67 per month, based upon an annualized "run rate" of $305,000, reflecting only $60,000 less in annualized income, while he awaited final word on WTS's 2009 performance, which was anticipated in April. Further, he claims he maintained this higher run rate, in part, because he had financial commitments to meet, such as alimony, child support, his daughter's college expenses, and that he needed time to adjust to a diminished stream of income. The defendant additionally claimed he could maintain the run rate of $305,000, based upon an unidentified loan from the company, until April 2010 when the company books were to be finalized. See Exhibit 4.
The defendant uses this term to reflect the annualized amount of his monthly paycheck, based upon anticipated income.
In 2010, however, WTS did not close its books for the 2009 calendar year on time. Generally this occurs in April, before the May 15th deadline in the Agreement for the defendant to notify the plaintiff of the "bonus level he has attained." When WTS ultimately closed its books in late June or July of 2010, the defendant was officially notified that the bonus level he had attained for 2010 was $59,454, based upon the 2009 performance of the company. This bonus, combined with his annual salary of $125,000, resulted in an anticipated annual income of $184,454 for the calendar year of 2010. This figure is significantly less than the originally anticipated figure of $215,000 and far less than the run rate of $305,000, upon which he had been basing his monthly paychecks and resulting support payments.
In order to address this very serious loss of annual income, the defendant requested an advance on his 2011 bonus, based upon the company's current performance in 2010. The defendant did this to even his income stream and, presumably, he was comfortable borrowing against the future success of WTS, because he testified that the tremendous loss of income in 2009 appeared to be isolated and due to an unsuccessful business expansion project in Texas. The defendant initially requested an advance on his bonus of $90,546, in order to provide total annual compensation of $275,000. Although this figure appears to have been approved by an authorized representative of WTS on August 5, 2010, see Exhibit 19, the defendant decided, instead, to take a $45,000 advance on his 2011 bonus, for a total annualized compensation package of $230,000 for 2010. Since the defendant had been paid from January until July at a run rate of $305,000, however, his monthly income from August forward has been significantly reduced, as have his alimony payments to the plaintiff. Her alimony payment is now $2,514.10 per month and she receives no child support.
A. Child Support Agreement
The formula for child support is found in section 3 of the agreement and provides, in part: "Husband shall pay to Wife child support of $1,653 per month ($381 per week in accordance with the child support guidelines) for the minor children, to be received bi-weekly in advance by Wife by the 15th and 28th days of each month, beginning on March 28, 2008 based on his base annual employment income of $125,000 per year. Any employment income received by Husband in excess of the base annual income of $125,000 shall be paid bi-weekly on the 15th and 28th to Wife as child support in the following manner (as income is received): 19.60% of net annual income between $125,000 and $187,500; 17.26% of the net annual income between $187,500 and $250,000; 15.89% of the net annual income over $250,000 . . . Husband shall let Wife know by May 15 of each calendar year what bonus level he has attained and thus what the child support level will be for the current year. There shall be a true up if Husband's bonus is retroactively adjusted for the period between January 1 and May 15 and Husband owes money to his company. Wife's annual employment income up to $25,000 shall not be deemed a substantial change in circumstances. Such payments are in accordance with the child support guidelines; such payments shall continue until each child has reached the age of eighteen (18) years or for the statutory duration whichever is greater. Husband understands that, in his sole discretion, he has the option but not the legal obligation to provide child support payments for one or both children past the age of eighteen (18) years or for the statutory duration whichever is greater. Furthermore, in the event that either child decides, when of the appropriate legal age pursuant to the laws of the state of Connecticut and subject to the mutual agreement of Husband and Wife, to name the Husband's residence as their principal residence, child support payments and the parenting schedule shall be amended accordingly . . ." (Emphasis added.) Agreement at § 3, pp. 11-12.
The Agreement states and the parties agree that the child support payments on the defendant's base pay of $125,000 are in accordance with the guidelines. The Agreement further states, but the parties disagree, that the payment of different marginal percentages above the defendant's base pay are also pursuant to the guidelines. In his testimony before the court, the defendant claimed that as a former mathematics major, he created these marginal, descending percentages through his own formulation of guideline percentages. However, he further claimed that he had provided a "premium" to the plaintiff in his child support payments, based upon the Agreement.
The court considers the defendant's comments contradictory and that the Agreement does not follow the guidelines above his base pay. Furthermore, there is no evidence before the court regarding the difference between the guideline amounts and the premium paid by the defendant pursuant to the Agreement, and there is no evidence of the application of any criterion for a deviation from the guidelines.
The court assumes, therefore, that the premium paid is less than 15% and did not require the application of a deviation criterion. In particular, the court credits the defendant with his testimony that he calculated his customized, marginal percentages with the guideline percentages as his guide.
B. Alimony Agreement
The formula for alimony at section 6.1 of the Agreement provides: "Husband shall pay to the Wife alimony of $2,514 per month ($580.18 per week), to be received bi-weekly in advance by Wife by the 15th and 28th days of each month, beginning March 28, 2008 based on his base annual income of $125,000 per year. Any employment income received by Husband in excess of the base annual employment income of $125,000 shall be paid to Wife as alimony biweekly on the 15th and 28th days of each month in the following amounts: 16% of income between $125,000 and $187,500; 14% of the income between $187,500 and $250,000; 12% of the income between $250,000 and 312,500; and 10% of the income between $312,500 and $375,000. Employment income in excess of $375,000 shall not be subject to alimony payments to Wife. Furthermore, alimony payments shall be reduced dollar for dollar for every dollar earned by Wife greater than an annual employment income of $25,000 per year. Income shall include anything in addition to base salary, including but not limited to compensation with labels such as bonus, commission, deferred compensation, stock options or equity in a corporation or company. Husband shall let Wife know by May 15 what bonus level he has attained and thus what the alimony level will be for the current year. There shall be a true up if Husband's bonus is retroactively adjusted for the period between January 1 and May 15 and Husband owes money to his company." Agreement at section 6.1, pp. 16-17.
C. Modification Agreement
The Agreement further provides for modification of alimony at section 6.5, as follows: "Except as otherwise provided herein the amount of alimony shall be modifiable upon a substantial change in the circumstances of the parties. Substantial change of circumstance shall be defined as Husband's significant loss of income or loss of employment or Husband's or Wife's complete and total continuous disability verified by an independent medical doctor that results in significant loss of income, lack of employability or loss of employment not for cause. In any modification proceeding, appreciation or depreciation in any assets received or retained hereunder, together with any income generated from such assets, shall not be considered, provided, however, that income from additions to such assets hereafter may be considered. Nevertheless, Wife's employment and earnings up to $25,000 annually shall not be deemed a substantial change in circumstances." (Emphasis added.) Agreement at § 6.5, pp. 17-18.
D. June 9, 2010 Agreement
The parties appeared in court on June 9, 2010 to modify the custody agreement, originally entered into at the time of the dissolution judgment. The written modification agreement was signed by the parties, who were canvassed by the court, Taylor, J. The modification agreement provides for the continued joint legal custody of their remaining minor child, David, but changes his primary residential custody from the plaintiff to the defendant, effective June 1, 2010.
At the time the modification was agreed upon and ordered, two pending motions were unresolved by the parties and were set down for hearings; namely, the plaintiff's Motion for Contempt — Post-Judgment dated April 26, 2010 (no. 128) concerning child support and alimony, and her Motion to Modify Alimony — Post-Judgment dated May 27, 2010 (no. 130), which are the subject of these proceedings.
During the course of the court's canvass, the plaintiff's attorney orally reported that there was a further agreement of the parties, along with the following colloquy with the court and the defendant's attorney: "The parties have agreed that . . . Mr. Verde will continue to pay the present amount that he's paying in terms of child support and alimony. And I believe it's — for child support, he's been paying 26-oh-8-37 (sic) [$2,608.37] a month and alimony he's been paying 46-26-60 [$4,626.60] a month [for a total of $7,234.97 per month]. And he'll continue to make those payments pending a decision on the outstanding motions." The Court: "Is that your understanding as well?" Atty. Diana: "Your Honor, whatever the payments are that he's paying, he's going to continue paying until we have a hearing on it." (Transcript p. 2.)
On June 9, 2010, the defendant was receiving a run rate of $305,000, which was the basis of his monthly paycheck and the plaintiff's alimony. The court notes that this oral agreement and colloquy occurred before WTS's books were closed, thereby establishing the annual bonus the defendant had attained for the year. Furthermore, the plaintiff no longer had any minor children residing with her, as Julia was in college and David's residence changed as the result of the agreement entered into by the parties that day.
III DISCUSSION
The plaintiff claims that the defendant has unilaterally changed his alimony and child support payments in contravention of the Agreement. The court agrees, in part, with respect to the defendant's child support payments. The plaintiff further claims that the defendant's income, for purposes of determining child support and alimony, is based upon the defendant's bonus paid during the previous year. The court disagrees with the plaintiff's conclusion, based upon the language of the bonus provision in the Agreement and parol evidence.
The court will begin its analysis with a review of guiding principles for interpreting the contractual language of the Agreement of the parties, which has been incorporated by reference into the judgment in this case. "In dissolution actions, the trial court is allowed to accept stipulations crafted by the parties and incorporate them into its order or decree . . . As a result, a stipulated judgment is not a judicial determination of any litigated right . . . It may be defined as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction . . . The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement.
General Statutes § 46b-66(a) provides: "In any case under this chapter where the parties have submitted to the court an agreement concerning the custody, care, education, visitation, maintenance or support of any of their children or concerning alimony or the disposition of property, the court shall inquire into the financial resources and actual needs of the spouses and their respective fitness to have physical custody of or rights of visitation with any minor child, in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances. If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court. If the court finds the agreement is not fair and equitable, it shall make such orders as to finances and custody as the circumstances require. If the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree, notwithstanding the provisions of section 1-1d."
"Because a stipulation is considered a contract, our interpretation of a separation agreement that is incorporated into a dissolution decree is guided by the general principles governing the construction of contracts . . . Thus, if there is definitive contract language, the determination of what the parties intended by their . . . commitments is a question of law . . . The language used in a contract must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous . . . Finally, in construing contracts, we give effect to all the language included therein, as the law of contract interpretation . . . militates against interpreting a contract in a way that renders a provision superfluous. Therefore, when interpreting a contract, we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result." (Citations omitted; internal quotation marks omitted.) CT Page 1076 Afkari-Ahmadi v. Fotovat-Ahmadi, 294 Conn. 384, 389-91, 985 A.2d 319 (2009).
Keeping these principles in mind, the court will consider the particular claims of the parties.
A. The Defendant's Bonus
The specific agreement of the parties for the determination of the bonus is as follows: "[Defendant] Husband shall let [plaintiff] Wife know by May 15 what bonus level he has attained and thus what the child support [and alimony] level will be for the current year. There shall be a true up if Husband's bonus is retroactively adjusted for the period between January 1 and May 15 and Husband owes money to his company." Agreement at § 3, pp. 11-12 and § 6.1, pp. 16-17.
The plaintiff claims this language requires the defendant to pay child support and alimony based upon the bonus he was paid and received in 2009 which, combined with his base pay, was $365,000. The defendant alternatively claims this language requires him to determine his current year's annual bonus at the time his employer's books are closed on the previous calendar year. He is then to make payments of child support in the current year based upon his monthly paycheck, as it is adjusted for his bonus payments. The court finds that the bonus language of the Agreement is ambiguous as to the applicable year the bonus is earned.
The child support provision of the Agreement indicates that payments are to be made "(as income is received),"supporting the defendant's conclusion that monthly paychecks are the basis for his payments. Unfortunately, parallel language is not used in the alimony section of the Agreement.
"A contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself . . . Accordingly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 13, 938 A.2d 576 (2008). The Agreement between the parties does not specifically refer to the year applicable to "what bonus level he has attained." Based upon the bonus language of the Agreement, the court finds the contract to be unclear and ambiguous and therefore subject to interpretation under the facts and circumstances of this case.
Without objection, the court permitted parol evidence concerning the meaning of this bonus language. "The parol evidence rule does not of itself . . . forbid the presentation of parol evidence, that is, evidence outside the four corners of the contract concerning matters governed by an integrated contract, but forbids only the use of such evidence to vary or contradict the terms of such a contract. Parol evidence offered solely to vary or contradict the written terms of an integrated contract is, therefore, legally irrelevant. When offered for that purpose, it is inadmissible not because it is parol evidence, but because it is irrelevant. By implication, such evidence may still be admissible if relevant (1) to explain an ambiguity appearing in the instrument . . ." HLO Land Ownership Associates Ltd. Partnership v. City of Hartford, 248 Conn. 350, 358, 727 A.2d 1260 (1999).
The process of determining the defendant's bonus is particularly important in this case due to a serious, downward fluctuation of WTS's profits for the 2009 calendar year. Further, the defendant did not formally notify the plaintiff of the final bonus level he had attained by May 15, 2010, as specifically required by the Agreement. Despite this non-compliance with a clear order of the court, the defendant cannot be in contempt because it is uncontroverted that the notification date of May 15 relates to the date by which WTS is expected to close its books for the previous calendar year; an event beyond the defendant's control that did not occur until late June or July of 2010. Therefore, the defendant was not notified by WTS of the specific bonus he had attained, based upon WTS's performance for 2009, until that time.
As previously discussed, however, the defendant originally informed the plaintiff in January that he was anticipating a loss of $150,000 in 2010. This loss would have resulted in bonus income of $90,000, for an anticipated annual income of $215,000 in 2010. However, the defendant instead began taking a run rate of $305,000, which would reflect, instead, a $60,000 loss of income instead of $150,000. The court finds this was done by the defendant for the purpose of maintaining his existing, financial commitments with an advance on his 2011 bonus, in the anticipated annualized amount of $90,000.
The defendant's total income in 2008 and 2009 was $365,000. Minus $150,000 equals $215,000. The defendant's base pay is $125,000. With the addition of a bonus payment of $90,000, his total income would have similarly equaled $215,000.
Using the anticipated annual income of $215,000, $305,000 is $90,000 higher.
In July, the defendant informed the plaintiff that his 2010 bonus was fixed at $59,454, with a combined base and bonus income of $184,454. However, instead of keeping or increasing the approved loan of $90,000, defendant reduced the advance on his 2011 bonus to $45,000, resulting in annualized income of $230,000. Therefore, having front-loaded his annual income excessively and having reduced his authorized loan against his future bonus, the defendant has placed both parties in difficult financial circumstances for the remainder of the year.
It is somewhat unclear whether the $90,000 loan, in addition to the defendant's anticipated income of $215,000, resulted in the run rate of $305,000.
The court finds that this series of notifications is inconsistent with one of the underlying purposes of the Agreement, which is to provide for a stable flow of anticipated income to the parties to enable them to appropriately plan their household budgets. However, the court also finds that the defendant notified the plaintiff many months in advance of the May 15th deadline, that he anticipated a loss of $150,000, which would, therefore, potentially reduce his income to $215,000 in 2010. In January of 2010, he emphasized this troubling turn of events when told her that "[t]his is serious business." Exhibit 4. Therefore, the court finds that the plaintiff had every reason to believe that she should be prepared for alimony and child support payments, based upon the defendant's targeted annual income of $215,000. Despite, in the court's view, too many unilaterally imposed fluctuations in his monthly income, the defendant's income for the year now appears accurately targeted as $230,000, which is $15,000 more than originally anticipated in January.
The fact that the defendant was able to manipulate his income, however, is troubling. Up until and during the period he was required to inform the plaintiff of the bonus level he had attained for 2010, the defendant was paying himself at a run rate of $305,000, potentially inducing the plaintiff to rely upon these payments. Further, he undermined his current income stream by taking a lower advance on his 2011 bonus than was authorized.
The plaintiff's primary argument concerning the defendant's bonus, however, is that child support and alimony payments in 2010 are to be based upon the bonus payments he received in 2009 and not the 2010 bonus as determined by the WTS's earnings for the previous year in 2009. The court disagrees with the plaintiff's analysis of the language of the Agreement. Based upon the defendant's testimony, which the court considers credible, his 2010 bonus is based upon the performance of WTS in 2009. Therefore, it is upon a previous year's performance of WTS that bonuses are subsequently paid during the current year on a monthly basis. Once the bonus level for the current year has been established after the books are closed, any adjustments for overpayments, or a "true up" as referred to in the Agreement, are reflected in lower monthly paychecks to the defendant, and, in turn, to the plaintiff pursuant to the formula in the Agreement.
Sections 3 and 6.1 of the agreement specifically apply to child support and alimony for "the current year." They also provide for a "true up" after the books are closed, presumably by May 15 of the current year. The true up language applies when the defendant owes money to his company and his bonus "is retroactively adjusted for the period between January 1 and May 15 . . ." From January until July of 2010, the defendant was paid an annualized run rate of $305,000. He is now being paid a new annualized income of $230,000, based upon his base, bonus and advance. Until July, therefore, the defendant has received monthly payments that are, proportionally, far in excess of his actual, annual income. Therefore, his monthly pay has been reduced to reflect not only his lower actual income, but to also account for the proportionally excessive monthly payments he received from January until July.
The court interprets this process to be consistent with the intent of the "true up" language of the Agreement in that the defendant's lower monthly paychecks reflect previous overpayments and therefore a debt owed to the company. The court further finds the defendant's process of paying alimony and child support, based upon his monthly paycheck, to be consistent with the Agreement. This is also consistent with another underlying purpose of the Agreement, which is to provide for a self-executing, self-modifying financial arrangement intended to avoid unnecessary court intervention.
The income sharing model expressed in the bonus provision in the Agreement would make far less sense if the fluctuations in the defendant's income were not effectuated until the following year, as suggested by the plaintiff's interpretation of the language of the Agreement. Since the payment of the defendant's bonus lags behind the performance of WTS by a year, any additional delay in the effectuation of either losses or gains in bonus income further removes the payment of alimony and child support from the economic realities of the defendant's employment. Although the plaintiff's interpretation would allow her to plan her budget further in advance, it would also unfairly burden the defendant by either requiring him to absorb this economic loss entirely for one year or to seek a modification pursuant to section 6.5 of the Agreement, due to a substantial loss of income. Further, the plaintiff's interpretation of the Agreement does nothing to level or stabilize the defendant's stream of income; instead, it would simply delay the inevitable. Therefore, the court agrees with the defendant's interpretation of the bonus provision in the Agreement.
B. Plaintiff's Motion for Contempt and Defendant's Motion to Modify 1. Alimony
On April 26, 2010, the plaintiff filed a motion for contempt for the defendant's willful failure to pay the appropriate amount of alimony in accordance with § 6 of the Agreement. See II. B., supra. Based upon the court's adoption of the defendant's interpretation of the language of the alimony and bonus provisions of the Agreement, the court finds the defendant to be in compliance with his alimony obligation. Therefore, the defendant is not in contempt of the alimony order of the court.
2. Child Support
The plaintiff also claims in her April 26, 2010 motion for contempt, that the defendant has willfully failed to pay the appropriate amount of child support in accordance with § 3 of the Agreement. See II. A., supra. In addition to the plaintiff's motion for contempt, the defendant filed a motion to modify the child support order on June 30, 2010, based upon the parties' agreement, dated June 9, 2010, to transfer primary residential custody of their remaining minor child, David, to the defendant.
After Julia graduated from high school and turned 18 on August 8, 2009, the defendant unilaterally reduced his child support payments to the plaintiff, despite the fact that he considered the Agreement "silent" on the question of the formula's application to David, the one minor child residing primarily with the plaintiff. As the architect of the formula, the defendant believed he understood the proper interpretation of the child support provision of the Agreement as it is applied to one child, and unilaterally applied his interpretation of the formula. The plaintiff, upon consultation with her attorney, disagreed and filed her motion for contempt.
One problem in resolving the child support question in this case is that there is no specific sum of money ordered by the court, clearly requiring a modification of child support upon a change of circumstances. Instead, there is a specific, self-modifying formula, involving descending percentages applied to layers of income, resulting in potentially different payments, followed by a general reference to the guidelines. Although the Agreement specifically contemplates the "aging out" of one or both of the children, no alternative formula was adopted applicable to only one child.
First, the court finds that the child support language contained in the Agreement is inconsistent. The Agreement attempts to make the termination of child support payments self-executing upon each child reaching the age of majority. The child support section of the Agreement provides that "[s]uch payments are in accordance with the child support guidelines; such payments shall continue until each child has reached the age of eighteen (18) years or for the statutory duration whichever is greater. Husband understands that, in his sole discretion, he has the option but not the legal obligation to provide child support payments for one or both children past the age of eighteen (18) years or for the statutory duration whichever is greater . . ." Agreement at section 3, pp. 11-12.
Despite general language to the contrary, the specific child support formula in the Agreement does not follow the guidelines, as previously determined by the court. Furthermore, the child support provision of the Agreement is not self-executing or self-modifying with regard to income over $125,000, as applied to one child. On its face, therefore, the Agreement may be read to apply equally to either one or two children. However, in light of the inconsistency found in the language of the agreement and the testimony of the parties, the provision is unclear, ambiguous and subject to interpretation. Therefore, the court finds that a modification of the Agreement is required to change the child support formula.
The Supreme Court has recently reiterated the standard applicable to civil judgments of contempt in In re Leah S., 284 Conn. 685, 935 A.2d 1021 (2007). The court explained: "[O]ur analysis of a judgment of contempt consists of two levels of inquiry. First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt . . . This is a legal inquiry subject to de novo review . . . Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court's determination of whether the violation was willful or excused by a good faith dispute or misunderstanding." (Citations omitted.) Id., at 693-94, 935 A.2d 1021.
"The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court . . . A good faith dispute or legitimate misunderstanding of the terms of an alimony or support obligation may prevent a finding that the payor's nonpayment was willful. This does not mean, however, that such a dispute or misunderstanding will preclude a finding of willfulness as a predicate to a judgment of contempt. Whether it will preclude such a finding is ultimately within the trial court's discretion." (Citation omitted; internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998).
The question in this case concerning child support is whether the defendant is in willful noncompliance with a clear court order. The court finds that the defendant steadfastly believes he has properly interpreted the child support provision of the Agreement. Although self-assurance may give rise to a willful contempt, the defendant's willfulness and contempt, in this case is for the opposing party's interpretation of the Agreement, as opposed to the court's order, which the court has additionally found to be somewhat ambiguous. The defendant's willfulness is also mitigated in this case by the fact that he participated in devising the formula and that the agreement was generally intended to be self-executing. However, based upon his own understanding of the Agreement's silence concerning the application of the formula to one child, as opposed to two, he was obligated to seek a modification of the agreement to address this admitted omission in the Agreement. Although an agreement may be intended to be self-executing, as was the case here, parties may not resort to self-help absent clear language or otherwise by agreement of the parties.
In Sablosky v. Sablosky, 258 Conn. 713, 784 A.2d 890 (2001), the Supreme Court reiterated the rule that a party may not resort to "self-help . . . by disobeying the court's order without first seeking a modification . . ." (Internal quotation marks omitted) id. at 720, quoting Eldridge v. Eldridge, 244 Conn. 523, 532, 710 A.2d 757 (1998). In Sablosky, the father had been ordered to provide financial support to his children while they remained undergraduate students. He was held in contempt of a support order when he stopped paying educational expenses after one child reduced her enrollment to part-time and the other delayed his expected graduation date beyond four years. Sablosky v. Sablosky, 61 Conn.App. 66, 68-69, 762 A.2d 922 (2000), rev'd, 258 Conn. 713, 784 A.2d 890 (2001). The father claimed that he had interpreted the order to mean that he was required to pay educational expenses only if his children were living on campus and enrolled in a full-time, four-year program, and that the support order was therefore ambiguous. Sablosky v. Sablosky, supra, 258 Conn. 716, 784 A.2d 890. Similarly, in Eldridge v. Eldridge, supra, 244 Conn 533, a former husband was found in contempt when he stopped paying alimony in the belief that his former wife, who had failed to inform him that her earnings had increased, owed him a credit.
The Supreme Court's "decisions in Sablosky and Eldridge serve to enforce an important public policy against resorting to self-help tactics." In re Leah S., 284 Conn. 685, 699, 935 A.2d 1021 (2007). "A different conclusion would not only frustrate clearly defined public policy regarding the parental obligation to support minor children . . . but it also would encourage parties to refrain from seeking clarifications of ambiguous court orders. The doors of the courthouse are always open; it is incumbent upon the parties to seek judicial resolution of any ambiguity in the language of judgments." (Citation omitted; internal quotation marks omitted.) Sablosky v. Sablosky, supra, 258 Conn. 722, 784 A.2d 890. Stated more simply, court orders must be obeyed until modified or successfully challenged in a court of law. See Mulholland v. Mulholland, 229 Conn. 643, 649, 643 A.2d 246 (1994).
The court has previously noted that the child support formula is inconsistent with the guidelines, yet the language in the Agreement, cited above, generally claims to be in accordance with them. The child support formula, however, is a very specifically drafted provision of the Agreement, compared with this very general reference to the child support guidelines. Although the language concerning the termination of child support upon reaching the age of 18 or the statutory duration is clear, the Agreement provides no alternative formula for the modification of child support for the benefit of only one child.
General Statutes § 46b-84(b) provides in relevant part: "If there is an unmarried child of the marriage who has attained the age of eighteen and is a full-time high school student, the parents shall maintain the child according to their respective abilities if the child is in need of maintenance until such child completes the twelfth grade or attains the age of nineteen, whichever occurs first . . ."
"A contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself . . . Accordingly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party's subjective perception of the terms." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 13, 938 A.2d 576 (2008). Based upon the inconsistent language of the agreement, the court has found the contract to be unclear and ambiguous and subject to interpretation. In interpreting ambiguous contract language, "it has been well settled that `the particular language of a contract must prevail over the general.'" Issler v. Issler, 250 Conn. 226, 237, 737 A.2d 383 (1999).
Based upon this analysis, the court finds that, absent modification, child support is to be paid pursuant to the formula in the Agreement, without regard to its application to one or two children. However, in light of substantial changes in circumstances; namely, that Julia has graduated from high school and gone to college and David has primarily resided with the defendant since June, the defendant's motion to modify child support (No. 141) is granted.
The retroactivity of this modification is addressed in the conclusion of this decision.
C. Plaintiff's Motion to Modify Alimony Dated May 27, 2010
The plaintiff has filed a motion to modify alimony, dated May 27, 2010 (130). It is axiomatic that, unless the parties have clearly provided otherwise, a preliminary finding of a substantial change in circumstance is required before a modification of alimony may properly be considered by the court pursuant to General Statutes § 46b-86.
General Statutes § 46b-86(a) provides in relevant part: "Unless and to the extent that the decree precludes modification, the court may order . . . any final order for the periodic payment of permanent alimony . . . or an order for alimony . . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party . . ." Our Appellate Court has considered this statutory language on numerous occasions and has concluded that the statutory right to limit the modifiability of alimony must be clearly and unambiguously exercised. "This statutory provision suggests a legislative preference favoring the modifiability of orders for periodic alimony and requires that the decree itself must preclude modification for this relief to be unavailable. If an order for periodic alimony is meant to be nonmodifiable, the decree must contain language to that effect. Such a preclusion of modification must be clear and unambiguous. If a provision purportedly precluding modification is ambiguous, the order will be held to be modifiable." (Citations omitted; internal quotation marks omitted.) Burke v. Burke, 94 Conn.App. 416, 422, 892 A.2d 964 (2006). However, "[n]onmodification provisions that are clear and unambiguous . . . are enforceable." Flaherty v. Flaherty, CT Page 1085 120 Conn.App. 266, 270-71, 990 A.2d 1274 (2010).
In the present case, the parties agreed to language concerning substantial changes in circumstances at section 6.5 of the Agreement. The first sentence of this provision reads as follows: "Except as otherwise provided herein the amount of alimony shall be modifiable upon a substantial change in the circumstances of the parties." Section 6.5 then goes on to read: "Substantial change of circumstance shall be defined as [follows] . . ." (Emphasis added.)
The defendant claims this language supplants the statutory criteria for changes in circumstances, as set forth in General Statutes § 46b-82, with the definitional language of the Agreement. The defendant additionally asserts that the plaintiff's circumstances have not changed, except for reductions in alimony and child support that were contemplated and bargained for in the Agreement. The plaintiff counters that this definitional language is not intended to be the exclusive basis for modifying alimony and that the court should consider, in particular, her loss of child support and unanticipated unemployability.
Considering the first sentence of § 6.5 in the context of the Agreement as a whole, the court reads the language of this sentence as modifying, but not supplanting, the provisions of General Statutes § 46b-86. This language precedes the definition of a substantial change in circumstances and does not clearly and unambiguously preclude all statutory considerations for changes in circumstances. Instead, it makes an exception for the self-modifying and self-executing provisions of the Agreement. For example, the formulas for child support and alimony specifically and clearly modify payments based upon substantial changes in the defendant's income. In addition, the definitional language of the Agreement protects the plaintiff from modification of alimony for earnings of up to $25,000, above which there is a self-executing modification, dollar for dollar pursuant to § 6.1 of the Agreement.
The second sentence of § 6.5 provides that substantial changes in circumstances "shall be defined as [follows] . . ." and then goes on to specifically addresses several, potential changes in the circumstances of the parties: ". . . [the] Husband's significant loss of income or loss of employment or Husband's or Wife's complete and total continuous disability verified by an independent medical doctor that results in significant loss of income, lack of employability or loss of employment not for cause. In any modification proceeding, appreciation or depreciation in any assets received or retained hereunder, together with any income generated from such assets, shall not be considered, provided, however, that income from additions to such assets hereafter may be considered . . ."
Based upon this language, the court is specifically directed to use the provisions of the Agreement in considering claimed substantial changes in the circumstances as defined in the Agreement. For example, it specifically precludes the court from considering gains or losses from marital assets. It also purports to set forth a standard for a substantial loss in the defendant's income and the medical disability of either party. The use of the words "shall be defined," however, does not clearly and unequivocally preclude the court's consideration of other changes in circumstances, not specifically contemplated in the Agreement. Therefore, based upon Burke v. Burke, supra, 94 Conn.App. at 422, and Flaherty v. Flaherty, supra, 120 Conn.App. 270-71, the court interprets the language of section 6.5 to be limited to its specific terms.
1. Employability
The court will now address the plaintiff's specific claims, beginning with the plaintiff's employability. Although the parties agreed upon the plaintiff's general employability at the time they entered into the Agreement, she now claims that, despite her efforts, she has been unable to obtain suitable or significant employment and is, instead, seeking an advanced degree in social work. She claims this is a substantial change in circumstances. The court disagrees.
"The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances. The change may be in the circumstances of either party. The date of the most recent prior proceeding in which an alimony order was entered is the appropriate date to use in determining whether a significant change in circumstances warrants a modification of an alimony award." Schwarz v. Schwarz, 124 Conn.App. 472, 476-77, 5 A.3d 548 (2010).
The definitional language in the Agreement specifically contemplates the plaintiff's employability, as follows: "Wife's complete and total continuous disability verified by an independent medical doctor that results in significant loss of income, lack of employability . . . or loss of employment not for cause." Although her disability, as defined, would provide for a change in circumstances pursuant to the Agreement as well as under the statute, the problem with the plaintiff's argument is that her employment circumstance has not changed substantially since the time of the dissolution. At that time, she was unemployed, as she is today.
The plaintiff more particularly asserts that her employability has changed in the context of the unanticipated current economic climate. Assessing the plaintiff's employability at the time of the dissolution compared with the current economic climate is, however, inherently speculative, especially as she may be, wisely, pursuing her graduate studies awaiting an improved economy. Although speculative as well, she may be more employable now as a master's degree candidate than she was at the time of the dissolution. Therefore, although the Agreement contemplates her future employment, her failure to meet this anticipated circumstance may not be the basis for a modification of alimony under the facts of this case.
2. Loss of Child Support
The court will now address the plaintiff's second claim concerning her loss of child support payments. Beginning with the years of 2008 and 2009, the defendant consistently paid the monthly sums of $4,010.74 in child support and $5,139.10 in alimony to the plaintiff, totaling $9,149.84 per month. During 2010, the defendant has paid alimony and support inconsistently. Focusing on June of 2010, when the defendant was paid a $305,000 run rate and was calculating child support based upon his own interpretation of the child support Agreement, he paid $2,608.37 a month in child support and $4,626.60 in alimony for a total of $7,234.97 per month. After their son David, the remaining minor child, moved in with the defendant in June and the defendant finalized his annual income of $230,000 for 2010, the defendant reduce his payments to the plaintiff from $7,234.97 per month for alimony and child support to $2,514.10 per month for alimony alone for the months of August, October and November, apparently based upon his base pay of $125,000.
See § 6.1 of the agreement. In addition, the court notes that in September the defendant paid the plaintiff $4,627.05 in alimony after receiving a bonus of $45,000. It is unclear whether this was a part of the defendant's $230,000 annual compensation, assumed by the court. Although the defendant testified to the fact that the $45,000 bonus was included in his annualized 2010 income of $230,000, footnote 1 of his financial affidavit reads as follows: "The Defendant's base salary is $230,000 plus bonus." It is possible to read this language to mean that his 2010 income is $45,000 higher at $275,000. The court, however, is satisfied that the $230,000 figure is accurate, as the weekly gross income from base salary and bonus figures reflect an annual income of $230,000.
Based upon the parties' current gross incomes, the plaintiff now receives only 27.5% of the income she received throughout the years of 2008 and 2009. Standing alone, the absence of child support payments would account for a 44% drop in her income. This is most certainly a substantial change in circumstances. By comparison, the defendant appears to be receiving only 34% of his previous years' earnings. This is also a substantial change in circumstances and the parties are in comparatively poor income positions at this time.
It is important to note, however, that plaintiff has received her proportional share of the, so-called, front-loaded income received by the defendant from January until July.
Other language agreed to by the parties and ordered by the court similarly provides for the termination of child support payments. In section 3 of the Agreement, the defendant is specifically permitted to either terminate or continue such support payments at his discretion, once the statutory term of support has ended. However, the court finds that this language does not clearly and unambiguously preclude modification of alimony for the loss of child support payments.
In Irizzary v. Irizzary, 29 Conn.App. 368, 614 A.2d 868 (1992), "[t]he trial court correctly found that there had been a substantial change in circumstances due to the fact that one of two children had attained his majority. The plaintiff's argument that such modification was prohibited because the change was contemplated ignores the plain language of General Statutes § 46b-86 as amended by Public Acts 1990, No. 90-213, which provides in pertinent part that `[a]fter the date of judgment, modification of any child support order issued before or after July 1, 1990, may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution.'" Id. at 368. See Cummock v. Cummock, 180 Conn. 218, 221-22, 429 A.2d 474 (1980) (although based upon a previous version of General Statute § 46b-86, the court found it was error to refuse a modification on this basis as a matter of law).
Once a substantial change in circumstances is established, "the same sorts of [criteria] are relevant in deciding whether the decree may be modified as are relevant in making the initial award of alimony. More specifically, these criteria, outlined in General Statutes § 46b-82, require the court to consider the needs and financial resources of each of the parties as well as such factors as the causes for the dissolution of the marriage and the age, health, station, occupation, employability and amount and sources of income of the parties." (Citations omitted; internal quotation marks omitted.) Schwarz v. Schwarz, supra, at p. 477, quoting Crowley v. Crowley, 46 Conn.App. 87, 91-92, 699 A.2d 1029 (1997).
A substantial change in child support may give rise to a modification of alimony as a matter of law; however, granting the plaintiff's motion under the facts of this case is less than compelling. But for the fact that David has moved in with his father in advance of completing high school, resulting in the plaintiff's loss of child support for one child, the circumstances facing the plaintiff today were contemplated and addressed in the Agreement. In addition, the agreement's safe harbor provision, providing an incentive for the plaintiff to find work and keep every dollar she earns up to $25,000, with a dollar for dollar reduction above that threshold, would be minimized or lost. The plaintiff has also chosen to pursue a graduate degree program, instead of pursuing employment on a full-time basis.
Other factors militating against a modification in this case include the fact that the defendant is not pursuing his claim for child support against the plaintiff, despite the fact that David resides with him and that he pays for an au pair for his care, due to the defendant's lengthy work and significant travel schedules. Further, the defendant also pays over 95% of Julia's college expenses of approximately $33,000 and the net assets of the parties are relatively equalized at over $500,000. Although the defendant has retained the family abode, he was required to place a $400,000 mortgage on the property in order to effectuate his property settlement with the plaintiff pursuant to the Agreement.
Based upon these circumstances, the court finds it difficult to exercise its discretion to modify alimony, especially in light of the continuing, self-modifying agreement and the defendant's reasonable expectation that the devastating 2010 income year is anomalous. Based upon this testimony and the self-modifying nature of the Agreement, the plaintiff's alimony payment may, in fact, increase accordingly in January of 2011. To modify alimony at this time would undermine the self-modifying purpose of the Agreement. Therefore, the motion to modify alimony is denied.
D. Plaintiff's Motion for Contempt Dated August 27, 2010
As previously discussed, the parties appeared in court on June 9, 2010 to modify the custody agreement concerning David by changing his primary residence from the plaintiff to the defendant, effective June 1, 2010. During the course of the court's canvass on the written custody agreement, the plaintiff's attorney orally reported that there was a further agreement of the parties to continue existing child support payments of $2,608.37 per month and alimony of $4,626.60 per month, pending the court's decisions on outstanding motions. The defendant's attorney responded, as follows: "Your Honor, whatever the payments are that he's paying, he's going to continue paying until we have a hearing on it." (Transcript p. 2.)
The plaintiff claims that the purpose of the June 9, 2010 oral stipulation was to maintain the status quo because of the defendant's previous, unilateral reductions in alimony and child support payments. At the time the modification was agreed upon and ordered, two pending motions were unresolved and were set down for hearings; namely, the plaintiff's motion for contempt dated April 26, 2010 (no. 128) concerning child support and alimony, and her motion to modify alimony dated May 27, 2010 (no. 130), which are the subject of these proceedings.
The defendant essentially claims that he was not specifically canvassed on the question of his continuing obligation of alimony and support payments to the plaintiff and that the written Agreement and June 9, 2010 modification must control.
1. Alimony
At the time of the court proceeding on June 9, 2010, WTS had not closed its books for 2009 and the defendant's bonus had not been finally determined for 2010. Thereafter, under the self-modifying alimony provision, the defendant adjusted his alimony payments according to the written Agreement. Based upon the changing facts of the case and the circumstances of the representation made by the defendant's attorney in open court, the written Agreement of the parties should prevail.
2. Child Support
Similarly, at the time of the June 9th court appearance, the defendant had not yet filed his motion to modify child support, dated June 30, 2010, and there was no promise made on the record to waive his right to do so. It is problematic, however, that the defendant has not made child support payments since July and there is no self-executing right to terminate child support in the Agreement until David is 18 or reaches the statutory duration of support. Additionally, although David has decided to move in with the defendant, and the parties have agreed to this custodial arrangement, he is still a minor and the Agreement does not address this specific possibility, as he is not "of the appropriate legal age pursuant to the laws of the state of Connecticut."
The Agreement provides in relevant part, as follows: "Husband understands that, in his sole discretion, he has the option but not the legal obligation to provide child support payments for one or both children past the age of eighteen (18) years or for the statutory duration whichever is greater. Furthermore, in the event that either child decides, when of the appropriate legal age pursuant to the laws of the state of Connecticut and subject to the mutual agreement of Husband and Wife, to name the Husband's residence as their principal residence, child support payments and the parenting schedule shall be amended accordingly . . ." (Emphasis added.) Agreement at § 3, pp. 11-12.
The court is unaware of any state law that allows an unemancipated 15-year-old child the legal right to choose his residence.
This reduction in child support is the third unilateral reduction made by the defendant. In September of 2009, the defendant unilaterally reduced his monthly child support payments of $4,010.74 to $3,013.42. Upon a reduction in his income in January of 2010, he unilaterally reduced his monthly child support payments further to $2,608.37. After serving his motion to modify child support upon the plaintiff in July, he then discontinued his child support payments altogether in August of 2010. Although the defendant was mistaken in discontinuing his child support payments upon filing a motion to modify absent an agreement or court order, the court finds there is insufficient evidence concerning his willful noncompliance with a clear court order.
The court will address the issue of the defendant's noncompliance, retroactivity and attorneys fees in the conclusion of this decision.
IV CONCLUSION AND ORDERS A. Plaintiff's Motions for Contempt and Modification
The court finds the defendant in compliance with his alimony obligation pursuant to the Agreement. The court also finds the defendant is noncompliant, but not willfully so, with respect to his child support obligations to the plaintiff. Therefore, the plaintiff's motions for contempt are denied. In addition, for reasons more fully set forth in the court's decision, the plaintiff's motion to modify alimony is denied. However, in doing so, the court will significantly address the plaintiff's change in circumstances for loss of child support in the order concerning noncompliance and retroactivity.
B. Defendant's Motion for Modification
The defendant's motion to modify child support is granted, which gives rise to the question of retroactive application. General Statutes § 46b-86 provides in relevant part: "No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50." The court further finds that the plaintiff's attorney accepted service of the defendant's motion for modification on July 2, 2010.
Pursuant to the provisions of General Statutes § 46b-86, the court may retroactively apply the motion to modify to the date of service. "[T]he long-standing rule of law in effect was that a court's order modifying alimony and child support may not be retroactive. Sanchione v. Sanchione, 173 Conn. 397, 406, 378 A.2d 522 (1977); Darak v. Darak, 210 Conn. 462, 479, 556 A.2d 145 (1989); Paddock v. Paddock, 22 Conn.App. 367, 373, 577 A.2d 1087 (1990). These cases hold that modification must be prospective in nature and can be effective only from the date of the hearing on the motion. In 1990, however, the Connecticut legislature passed an amendment to § 46b-86(a) that provides . . . [for] retroactive modification . . . with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice . . ." Vickery v. Vickery, 25 Conn.App. 555, 559, 595 A.2d 905 (1991). An order of retroactivity is, however, a matter within the court's discretion. Cannon v. Cannon, 109 Conn.App. 844, 850, 953 A.2d 694 (2008).
Based upon the facts of this case, the court will not exercise its discretion to order the retroactive modification of child support. There are numerous considerations leading the court to this conclusion. First and foremost, the defendant has consistently and unilaterally reduced child support payments to the plaintiff without the agreement of the parties or order of the court. Second, although fluctuations in the defendant's income have been dramatic, they have more seriously impacted the plaintiff's income, especially in light of the fact that the plaintiff's child support was unilaterally reduced and eliminated. In addition, this income stream is now more adversely affected by the defendant's unilateral acts impacting his 2010 income, most particularly his decision to front-load his income for 2010 and then take significantly less of an advance on his 2011 bonus than was authorized by his employer. Also important is the fact that the child support order is self-modifying, based upon the defendant's actual income.
By requiring child support for the period of noncompliance, the plaintiff's change in circumstances is far less dire. However, there is no current child support order in place. Although this new change in child support may give rise to a modification of alimony in the future, the court notes that the plaintiff's motion to modify alimony was denied for other reasons as well, more fully set forth in the body of this decision. Additionally, any such motion would be viewed in the context of the parties' evolving economic circumstances, which may very well change substantially in a matter of weeks, based upon the defendant's reasonable expectation of increased income for 2011, and the resulting increase in alimony provided to the plaintiff through the self-modifying terms of the Agreement.
C. Order 1. Arrearage
For his noncompliance with the Agreement, the defendant shall pay his child support arrearage as follows: First, the child support arrearage shall be calculated pursuant to the formula in § 3 of the Agreement from August 9, 2009 until January 1, 2010, based upon the defendant's actual income of $365,000 per year. Thereafter, the child support arrearage shall be calculated pursuant to the formula in § 3 of the Agreement, using the defendant's actual monthly income. After calculating the arrearage due pursuant to this order, any disagreement shall be reported to the court by the parties within 14 days of this judgment. The first $10,000 of the arrearage owed shall be paid in a lump sum within 21 days of this judgment. The remaining arrearage shall be paid bi-weekly until the arrearage is paid in full, on the 15th and 28th of each month, to the plaintiff by the defendant as monthly income is received, pursuant to the formula in § 3 of the Agreement.Although the defendant paid $2,608.37 per month from January until July 2010, and the defendant's attorney agreed to continue paying this amount in open court, the court substitutes this order in lieu thereof, based upon the written Agreement of the parties, which better reflects the defendant's ability to pay.
2. Attorneys Fees
The court orders the plaintiff to provide an affidavit of attorneys fees and costs within 14 days, separated by motion, if possible. "In a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole a party who has suffered as a result of another party's failure to comply with the court order." (Emphasis in the original; citation omitted; internal quotation marks omitted.) Clement v. Clement, 34 Conn.App. 641, 647, 643 A.2d 874 (1994).
SO ORDERED.