William Marshall v. Kimberly Marshall (2012)

Decision

The parties are before the court on Plaintiff's motions to modify alimony, # 166.89 and Defendant's motions for contempt, # 169, 169.50, 170, and 172.   Having heard evidence from parties and considered relevant case law and statutes, the court issues the following decision.

The issue before this court is whether the separation agreement incorporated into the dissolution judgment contained a self-executing clause allowing plaintiff to modify alimony payments based on a change in income.

The parties were divorced on May 27, 2007.   The judgment incorporated the separation agreement dated May 22, 2007.   Article Four of the agreement covered alimony and support orders.   Section 4.2 required the husband (plaintiff) to pay unallocated alimony and child support payments in an amount equal to 40% of plantiff's pre-tax income, which the parties stipulated to be $192,000, from the date of the judgment until June 1, 2012:  After that date, the percentage of pre-tax income changed to 37.5%. The article clearly defined what would be considered as “pre-tax income from employment.”

Section 4.4 states as follows:

If the husband's base salary and direct benefits from Artisans Home Builders, Inc., or a subsequent employer, exceeds or is less than $192,000, the Husband shall immediately notify the Wife of such change and advise her of the amount of increase or decrease.   The change in the Wife's entitlement of the forty percent or thirty-seven and one-half percent, whether more or less, shall be effective on the first day of the month following the Husband's receipt of a salary increase or of a salary decrease.

Section 4.6 allows either party the right to move for modification of the provisions of 4.1, 4.2, and 4.3 in the event there is a substantial change in the nature of husband's compensation.

Alimony was paid in accordance with the separation agreement for the years 2007 and 2008.   The plaintiff testified that he was a partner in Artisans Home Builders, a company that built custom homes.   The business began a steady decline beginning in 2008;  by 2009, the company had suffered a significant decline in business and as a result the plaintiff saw a corresponding decline in income.   According to the exhibits submitted:  in 2007, plaintiff's income was $192,000, by 2008, the income had declined to $127,591, by 2009, the income had been reduced further to $72,000.   Plaintiff's income for the years 2010 and 2011 remained at approximately $72,000.

The defendant (wife) earned $44,680 in the year 2009;  approximately one-third of that amount, $14,000 was alimony.   No evidence was offered regarding prior yearly income, she was not employed outside the home prior to 2008.   In the year, 2010, she returned to full-time employment in a family business and earned $100,000.   Her earnings for 2011 and amounts expected in subsequent years will be roughly the same income level.

The plaintiff communicated both by e-mail and in person with the defendant notifying her of an impending decrease in alimony.   His attorney also notified defendant's counsel of record by letter in November 2008 (ex.12), that there was a strong likelihood alimony payments would be reduced due to the economic downturn of plaintiff's business.   Defendant received reduced alimony payments of $3,200 for the first six months of 2009.   Plaintiff stopped all alimony payments as of July 1, 2009.

The defendant did not file a contempt motion regarding the non-payment of alimony until August 2011.   Her decision to not take legal action earlier was based on her feelings that the litigation involved in the divorce action had just been too stressful.   She also testified that she was aware of the dire economic state of plaintiff's business and hoped that the situation would improve.

Plaintiff claims that Section 4.4 of the separation agreement is self-executing and he was entitled to reduce his alimony payments without resort to a modification before the court.   Defendant claims the alimony can only be modified by a return to court and asks that this court find plaintiff in contempt.

Upon reading Section 4.4, it is clear that the intent of the parties was to create a self-executing clause;  a document designed to reduce the need for court intervention.   Upon an increase or decrease of income in the amount of $192,000, the section applies a simple mathematical formula: 40% (after 6/1/12, 37.5%) of plaintiff's pre-tax income.   The section provides for notice to the defendant of the amount of increase or decrease.   The separation agreement provided for an annual exchange of income tax returns.   Both parties relied on the annual income tax return to set the amount of pre-tax employment income.   The language is clear and unambiguous and based on an easily discernable event.   The defendant did not present any evidence that the agreement or section contained any ambiguity.

A separation agreement is a contract between the parties and governed by general principals of contract 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.”  Verde v. Verde, 2011 CT.Supp 1068, (2010);  Afkari–Ahmadi v. Totovat–Ahmadi, 294 Conn. 384, (2009).  “A court will not torture words to import ambiguity where the ordinary meaning leaves no reason for ambiguity and words do not become ambiguous simply because lawyers or laymen contend for different meanings.”  Stein v. Stein, 49 Conn.App. 536, 539 (1998).   See also, Howe v. Howe, 2010 Conn.Sup. 14744 (2010);  Behrns v. Behrns, 80 Conn.App. 281 (2003).   Based on the case law, the court finds Section 4.4 of the separation agreement to be self-executing.

However, neither the separation agreement nor the clause provided for the complete cessation of alimony payments.   Plaintiff should have reduced his alimony payments in accord with the Section 4.4 of the separation agreement to an amount equivalent to 40% of his income.   According to his salary of $72,000, he should have paid alimony in the amount of $2,400 per month beginning in 2009 and continuing in the subsequent years.   Defendant therefore owes alimony in the following amounts:

$14,400 for the year 2009 (6 months @ $2,400/month);

$28,800 for the year 2010 (12 months @ $2,400/month);

$19,200 for the year 2011 (8 months @ $2,400/month).

Plaintiff has moved to modify terms of the agreement (motion # 166.89) under the provision of Sec 4.6 claiming there is a substantial change in circumstances.   He requests a downward modification of the alimony payment due to the changes in actual income of each party.   There has clearly been a substantial change in plaintiff's income;  his earnings have decreased by over 60%.   On the other hand, defendant has returned to full-time employment and her earnings now actually exceed the plaintiff's income by nearly $30,000.   As a result the court will grant plaintiff's motion to modify alimony retroactive to the date of the modification motion, August 31, 2011.   Given the present income capacity of the individual parties, the court will modify current alimony payments pursuant to section 4.6 to the amount of $1.00 per year.

Plaintiff also moves to have defendant held in contempt for failure to pay her share of unreimbursed medical expenses.   Section 9.3 of the agreement required the parties to split the costs for any unreimbursed medical expenses for the three adult children until their 23rd birthday.   Matthew, whose date of birth is September 19, 1989, was the only minor child at the time of the dissolution.   Per the agreement, defendant is required to pay one-half of Matthew's expenses from February 1, 2008 through September 19, 2012.   Plaintiff submitted proof of payments of co-pays and other medical expenses not covered by insurance.  (Exhibit # 17.)   Many of the expenses occurred after the children had attained majority and beyond the age where the parties were obligated to pay those expenses.   The evidence established that allowable expenses for Billy were $1,874.96;  for Greg $170;  for Matthew $3,345.68;  for a total figure of $5,390.64.   There were no allowable expenses for the child Michaela.   Defendant therefore owes plaintiff $2,695.32 for unreimbursed expenses.

Orders:

This court declines to hold either party in willful contempt.   Granting plaintiff's motion to modify;  issues the following orders:

1) Plaintiff owes alimony in the total amount of $62,400, to be paid in monthly installments of $2,400 until paid in full;

2) Defendant owes plaintiff for unreimbursed medical expenses in the amount of $2,695.32.   This amount will be deducted from the total owed by plaintiff;

3) Based on the financial circumstances of each party, the court declines to award attorneys fees.   The court declines to impose statutory interest on the amounts owed.

Klatt, J.

Klatt, Corinne L., J.