83 Conn. App. 567 | Conn. App. Ct. | 2004
Opinion
In this marital dissolution action, the defendant, Robert E. Medvey, appeals from the trial court’s postdissolution judgment holding him in contempt for his failure to pay alimony in accordance with the terms of the parties’ dissolution judgment. On appeal, the defendant claims that the court improperly (1) premised its finding of contempt on an incorrect determination of his gross income for calendar year 2002, (2) found that he wilfully failed to comply with the alimony provision of the dissolution judgment and (3) awarded $7500 in counsel fees to the plaintiff. We affirm the judgment of the trial court.
The following facts and procedural history are relevant to our consideration of the issues on appeal. The marriage of the parties was dissolved by judgment of the court on May 26, 1998. In its judgment, the court incorporated by reference a marital separation agreement between the parties dated May 26,1998. The agreement provided, in part, that the defendant would pay the plaintiff a base amount of alimony of $25,000 a year in twenty-four equal installments. The agreement also required the defendant to pay the plaintiff, as addi
On November 21, 2002, the plaintiff filed a motion to hold the defendant in contempt for his alleged failure to pay alimony during 2002 in accordance with the terms of the marital dissolution judgment. Specifically, the plaintiff claimed that the defendant had failed to make the alimony payments required under the provision of the agreement that required the defendant to pay “additional alimony” pursuant to a formula related to his additional earned income. The defendant, in turn, filed a motion to modify the judgment, alleging that since the date of the marital dissolution, he had become a partner in a limited liability company and that he was no longer receiving income as a consultant. Specifically, the defendant alleged that income that once went directly to him was now being paid to the partnership, and the partnership, in turn, was paying all company expenses before remitting payment to the defendant.
The essence of the court’s finding was that the defendant’s new arrangement did not substantially alter the amount of funds available to him and, therefore, he owed the plaintiff “additional alimony” in the amount of $67,887.95. Specifically, the court found that even though the defendant had become an employee of a new entity, he had received less funds from his employer only because he had directed the company from which he earned commissions to remit those commissions to his new employer and not to him personally. The court further found that those remittances were, in fact, payable to the defendant and were available to him, but for his contrary instructions that they be paid to his new employer. Thus, the court assigned to the defendant as income all sums credited to him, even though they were not actually received by him during the year. As a consequence, the court found the defendant in contempt and ordered him to pay the plaintiff the sum of $67,887.95. In addition, the court ordered the defendant to pay plaintiffs counsel the sum of $7500. This appeal followed.
We begin by articulating the appropriate standard of review. The defendant raises three claims on appeal. As to his first two claims regarding the court’s determination of the amount of alimony due for 2002 and the court’s finding of contempt, our review requires a two part inquiry. First, we must determine whether the
As to the first question, it is familiar law that a marital dissolution agreement is a contract. Id. Thus, in reviewing it, we are guided by the law that the interpretation of a contract may either be a question of law or fact, depending on whether the language of the contract is clear and unambiguous. See Issler v. Issler, 250 Conn. 226, 235, 737 A.2d 383 (1999). Here, the parties agree, as do we, that the language of the contract at hand is clear and unambiguous. Thus, the court’s conclusions regarding the intent of the parties in making the contract required legal judgment. See Amodio v. Amodio, supra, 56 Conn. App. 470. Accordingly, they are subject to plenary review. See id.
As to the second question, barring any issues of jurisdiction or authority, “[w]e note that the abuse of discretion standard applies to the trial court’s decision on [a] motion for contempt.”
I
The defendant first claims that the court’s finding of contempt constituted an abuse of discretion because the court premised that finding on an incorrect determination of his gross income for calendar year 2002. We disagree.
As noted by the court in its thorough and comprehensive memorandum of decision, at the time of the marital dissolution, the defendant was employed as a broker and financial adviser by Commonwealth Equity Services and Investmark, Inc. (Commonwealth). Pursuant to the defendant’s employment arrangement, Commonwealth received all payments for services rendered by the defendant. From that amount, Commonwealth deducted a fee of 10 percent for providing affiliation to the defendant as the broker-dealer under which he was a registered representative and remitted an additional 30 percent to Investment Financial Services, which paid for all of the defendant’s office expenses. The remaining 60 percent of the payments was then disbursed to the defendant. The court found that in 2002, the defendant voluntarily left Commonwealth and joined The Breakwater Group (Breakwater). According to the court, under the terms of that new arrangement with Breakwater, the defendant received an annual base
The court then found that although the defendant stopped receiving funds directly from Commonwealth after March, 2002, Commonwealth paid all funds due to him for the remainder of 2002 directly to Breakwater at his directive. The court also found that all of the funds paid by Commonwealth either directly to the defendant or to Breakwater pursuant to his directions represented commissions earned by the defendant. Those funds totaled $345,561.
On the basis of that finding, the court concluded that in 2002, the plaintiff should have received as alimony the sum of $71,883.95 in addition to the base sum of $25,000. Finding that the plaintiff had received only the additional sum of $3996, the court concluded that the sum of $67,887.95 was due to the plaintiff for the calendar year 2002.
The defendant contends that the court improperly included in its “additional alimony” computation the funds paid by Commonwealth to Breakwater. He posits that that computation was to be based on his net income rather than on Breakwater’s gross income and that as such, he netted only $138,641.50 in income in 2002. Thus, the defendant argues that he did not violate the dissolution judgment because he was obligated to pay the plaintiff only approximately $2900 in “additional alimony.” We are unpersuaded.
The purpose of the supplemental alimony provision in the parties’ agreement was to provide the plaintiff with a fixed percentage of the income the defendant earned in excess of the base figure of $130,000. The court found that the sums paid by Commonwealth to Breakwater constituted income paid to the defendant in 2002 that was, therefore, to be included in the “additional alimony” computation. Our review of the record
Because we believe that the court accurately determined the amount of income the defendant received in 2002, we further conclude that the court’s determination regarding the sum due and owing the plaintiff was not clearly erroneous. Given the propriety of the court’s underlying factual findings, the defendant’s claim that the court’s judgment of contempt constituted an abuse of discretion must fail.
II
The defendant also challenges the court’s judgment of contempt by alleging that the court improperly found that he wilfully failed to comply with the dissolution agreement. We disagree.
The court’s memorandum of decision reflects the court’s understanding that a finding of contempt presupposes a determination of wilful noncompliance with the court’s order. Having determined the proper legal premise, the corut found that the defendant fully understood the extent of his alimony obligation and that his failure to pay in accordance with the terms of the marital dissolution judgment was wilful. Because that finding is supported by the record, we conclude that the court’s finding of contempt did not constitute an abuse of discretion. Accordingly, that claim fails.
III
The defendant’s final claim is that the court abused its discretion when it ordered him to pay the plaintiffs counsel fees in the amount of $7500. Specifically, he argues that the award (1) is inequitable because his financial affidavit does not reflect an ability to pay it and (2) lacked evidentiary support.
A
The defendant first posits that because his financial affidavit did not reflect an ability to pay the attorney’s fees sought by the plaintiff, the court abused its discretion in awarding such fees. It is, however, well settled that pursuant to § 46b-87, the court has the authority to impose attorney’s fees as a sanction for noncompliance with a court’s dissolution judgment and that “ that sanction may be imposed without balancing the parties’ respective financial abilities.” (Emphasis added.) Dobozy v. Dobozy, 241 Conn. 490, 499, 697 A.2d 1117 (1997). As such, the defendant’s contention is without merit.
B
The defendant also argues that the court’s award of counsel fees lacked evidentiary support. The record, however, belies this claim.
Our review of the record reveals that the defendant testified that he had paid more than $13,000 in fees in conjunction with the proceedings, and the plaintiff testified that she had already paid her counsel the sum of $7500 in fees in conjunction with this postdissolution dispute. Additionally, the record discloses that the court, in making the award, was aware of the nature and extent of the efforts of the plaintiffs counsel in
The judgment is affirmed.
In this opinion the other judges concurred.
For the purpose of clarity, we note that “[c]ontempts of court may be classified as either direct or indirect, the test being whether the contempt is offered within or outside the presence of the court. . . . The defendant’s failure to comply with the [dissolution decree] is, therefore, an indirect contempt because it occurred outside the presence of the trial court.
“[A] finding of indirect civil contempt must be established by sufficient proof that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure as in ordinary cases.” (Internal
The defendant also argues that because the court’s underlying finding of contempt was improper, the court abused its discretion in awarding the plaintiff $7500 in counsel fees. Because we affirm the court’s finding of contempt, we need not separately address that argument.
In making that determination, we are mindful of our Supreme Court’s recent decision in Smith v. Snyder, 267 Conn. 456, 839 A.2d 589 (2004), concerning counsel fees generally in which the court held that in order to secure an order for counsel fees, a party must submit more than a mere demand to the court and that a party seeking counsel fees cannot rely solely on the court’s general knowledge of the reasonable range of legal fees in fashioning the award of counsel fees. We believe, however, that this case is distinguishable from Smith because here, unlike in Smith, the plaintiffs financial affidavit revealed that she had actually incurred legal fees in the amount requested, and that amount was slightly more than half the amount already paid by the defendant to his counsel for representation in the same matter. Those facts, coupled with the court’s own participation in this matter, gave it a reasonable basis for determining an appropriate award of counsel fees in this proceeding as a sanction for the defendant’s contempt.