164 Conn. App. 805
Conn. App. Ct.2016Background
- Parties married in 1989; separation agreement dated October 23, 2003 incorporated into dissolution judgment.
- Paragraph 4.2 requires unallocated alimony and child support equal to 45% of gross annual earned income (GAEI) up to $1,750,000, until specified events occur.
- Paragraph 4.3 defines GAEI to include various forms of compensation and explicitly includes partnership distributions from employment-related sources.
- Paragraph 5.8 and 5.10 designate the Cantor Fitzgerald LP assets and the profit sharing; plaintiff retains some assets, defendant retains others.
- Plaintiff moved for contempt in 2013 alleging underpayment of 45% of income; three-day hearing occurred in March 2014; expert analyzed GAEI including limited partnership distributions.
- Trial court found underpayment of $370,440 and awarded fees in July 2014; defendant appealed challenging interpretation of 4.3 and the fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether limited partnership distributions are included in GAEI under 4.3 | Partnership distributions are expressly included in 4.3 as GAEI. | Distributions are not from personal services and are assets; excluded by 5.8; not employment income. | Ambiguous; remand required to determine intent of parties. |
| Whether the trial court failed to make factual findings on the parties' intent when interpreting 4.3 | Court should defer to its interpretation if unambiguous; ambiguity exists if no factual findings on intent. | Court erred by not articulating intent and should have remanded for fact-finding. | Remand necessary to determine parties' intent regarding 4.3 and partnership distributions. |
| Whether the attorney and expert fees awarded were proper given remand may alter income calculation | Fees should be awarded for contempt prosecution based on established underpayment. | Fees premised on an unresolved underpayment should be reconsidered if remand changes outcome. | Fees must be set aside pending remand and retrial on the income ambiguity. |
Key Cases Cited
- Nation-Bailey v. Bailey, 316 Conn. 182 (2015) (contract interpretation principles; extrinsic evidence for ambiguity)
- Parisi v. Parisi, 315 Conn. 370 (2015) (ambiguity in separation agreements requires remand for intent determination)
- Marshall v. Marshall, 151 Conn. App. 638 (2014) (remand for evidentiary hearing to determine party intent in separation agreement)
- Bijur v. Bijur, 79 Conn. App. 752 (2003) (ambiguous provisions in separation agreements; need for factual findings on intent)