Opinion
FBTFA144047586
11-24-2015
Erik Zamkoff v. Sharon Zamkoff
UNPUBLISHED OPINION
Filed Date November 25, 2015
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR CONTEMPT (#125.89)
Gerard I. Adelman, J.
On October 8, 2015, the defendant, Sharon Zamkoff, filed a Contempt Citation Issued Post Judgment (#125.89), alleging that the plaintiff, Erik Zamkoff, had failed to pay her the proper amount of support pursuant to the unallocated order for alimony and child support. Counsel for both parties submitted a stipulation to the court dated November 11, 2015, agreeing to the facts, and that the dispute is one requiring the court to interpret two specific provisions of the separation agreement (Agreement) that was incorporated into the judgment of dissolution entered on January 23, 2015 (#114.00).
The defendant filed two motions at the same time. The clerk docketed the two motions as one using the number #124.89 and labeling it by the title of the first motion which did not go forward and was marked off at the hearing. The court indicated on the record that the contempt citation was to docketed by its own number and assigned #125.89 sua sponte. The clerk's office is directed to correct the Edison filing to reflect the two separate motions.
Provision 2.2 of the Agreement reads as follows:
Beginning February 1, 2015, the Husband shall pay to the Wife a sum equal to 40% of his gross income from employment, as and for unallocated alimony and child support, until the first to occur of the death of the Husband, the death of the Wife, the remarriage or cohabitation of the Wife pursuant to C.G.S. Section 46b-86, or July 1, 2020. Said payments shall be taxable to the Wife and deductible to the Husband. Based on this 40% due and the Husband's current annual base salary and his current bi-weekly pay schedule, he shall make payments to the Wife in the amount of $2,307.00 per pay period. In the event the Husband receives any employment income in excess of his current annual base salary, including but not limited to bonus, commission, raise, or salary increase due to change in job, but excluding stock options, the husband [sic] shall pay a sum equal to 40% of the gross value of same to the Wife, as and for unallocated alimony and child support, within 14 days of receipt of said funds.
Provision 2.4 of the Agreement reads as follows:
The Wife shall be entitled to a " safe-harbor" of up to $50,000.00 gross annual employment income before the same may be considered as a substantial change in circumstances for the purpose of modification of this support order. Likewise, the Husband shall be entitled to a " safe-harbor" of up to $200,000.00 gross annual employment income before the same may be considered as a substantial change in circumstances for the purpose of modification of this support order. This safe-harbor clause does not affect the Husband's current obligation to pay 40% of his gross income to the Wife as described in paragraph 2.2 above.
On September 1, 2015, the plaintiff husband changed employment, and as a result his gross annual salary increased from $150,000 to $175,000. The issue presented to the court is whether or not that change in income requires the plaintiff to pay 40% of his newly increased income or does the safe-harbor clause prevent the defendant wife from seeking the increase.
The plaintiff's position is that he is protected by the safe-harbor provision until his income exceeds $200,000.00, and the defendant is therefore precluded from demanding 40% of the increased salary. The defendant's position is that the Agreement anticipated that the plaintiff might earn more than his base salary and that it required an adjustment using the 40% language. She argues that the safe-harbor language relates to motions to modify, yet she has brought a motion for contempt.
This dispute requires the court to consider the interpretation of the parties' marital settlement agreement. " [The] 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 . . . [T]he 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, [the court must] 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, [courts] 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.) Afkari-Ahmadi v. Fotovat-Ahmadi, 294 Conn. 384, 390-91, 985 A.2d 319 (2009); 1598; see also Russell v. Russell, 95 Conn.App. 219, 221-22, 895 A.2d 862 (2006) (a court's determination as to whether a contract is ambiguous is a matter of law).
Looking at the two provisions together, the court must read them so that they make sense as part of the agreement as a whole, while also giving full meaning to the provisions of each paragraph. The meaning of paragraph 2.2 is quite clear and even contains an example to be sure that any future reader of the language understands how it is to be employed. The meaning of paragraph 2.4 is also quite clear especially with the inclusion of the final sentence of the paragraph which makes clear that the " safe-harbor clause does not affect the plaintiff's current obligation to pay 40% of his gross income to the Wife as described in paragraph 2.2 above."
The plaintiff argues that the safe-harbor clause is rendered meaningless if he is required to pay 40% of his increased salary without his salary going over the prearranged level of income. The court agrees that the safe-harbor language does offer protection to the plaintiff if his income exceeds $200,000.00. Because it has not, however, the court disagrees with the plaintiff's argument in this context, and finds no conflict in the two provisions. The provisions of paragraph 2.2 clearly anticipate that the plaintiff might well earn more than his base salary of $150,000.00. The settlement gave the defendant the benefit of any additional money at the same rate as long as it was not in excess of the $200,000.00 amount. The language in 2.2 lists a variety of ways in which the plaintiff may be paid more than his present base salary, such as through commissions or bonuses. Clearly most importantly here, it lists " a salary increase due to a change in job . . ." The plaintiff's salary did increase due to a change in job and the plaintiff is obligated to pay 40% of his increased salary, and again, the language in 2.4 is clear that the safe-harbor language " does not affect the . . . current obligation to pay 40% . . . as described in paragraph 2.2 above."
In bringing this to the court as a motion for contempt, the defendant has the burden of proving by clear and convincing evidence that the plaintiff's failure to obey the court's order was willful. Brody v. Brody, 315 Conn. 300, 318-19, 105 A.3d 887, 899 (2015). She has not met that burden considering that the dispute was based on an honest difference in the interpretation of the Agreement. E.g., Issler v. Issler, 250 Conn. 226, 241, 737 A.2d 383 (1999) (improper to hold a party in contempt because their actions comport with a sensible interpretation of separation agreement). The fact that the court has ruled in favor of the defendant, however, does not negate the validity of the plaintiff's interpretation. Even without a finding of contempt, the court has the power to effectuate its judgment and order the payment of an obligation. " [C]ourts have continuing jurisdiction to fashion a remedy appropriate to the vindication of a prior . . . judgment . . . pursuant to [their] inherent powers . . ." (Citation omitted; internal quotation marks omitted.) Mickey v. Mickey, 292 Conn. 597, 604, 974 A.2d 641 (2009).
Paragraph 11.1 of the Agreement awarded legal fees and cost to the party that successfully enforces the provisions of said Agreement in the case of a failure by the other party to obey the various provisions of said Agreement. The language refers to a " default" only and within these terms, the agreement does not require a finding of contempt to be made in order to prevail. This is consistent with our jurisprudence that a finding of contempt is unnecessary for the award of attorneys fees. Dobozy v. Dobozy, 241 Conn. 490, 499, 697 A.2d 1117 (1997). The court finds that an award of attorneys fees is appropriate in this case.
In their Stipulation, Post Judgment, the parties agreed that the court could adopt a set of findings of fact relative to the motion for contempt. The court does adopt those findings and makes the following findings after a review of the pleadings, including the stipulation of the parties as well as the oral argument made by counsel and in consideration of the applicable statutory criteria as explained by our case law:
A. The defendant's interpretation of the Separation Agreement is correct;
B. The plaintiff should be paying 40% of his current income of $175,000.00, which amounts to $2,692.30 per pay period instead of $2,307.00;
C. The arrearage owed to the defendant as of December 1, 2015 is $2,697.10 (seven weeks from October 8, 2015 to November 30, 2015 times $385.30);
D. The plaintiff has had at all times the ability to pay the amount demanded by the defendant under her legal interpretation/position. His sole reason for not paying the increased amount was a result of his legal interpretation/position;
E. The defendant has not proven that the plaintiff is in contempt of the court order;
F. The provisions of the Agreement allow the court to award legal fees and costs to the prevailing party; and
G. The affidavit of services filed by the defendant's counsel reports a fixed fee of $1,500 and costs of $56.45.
Accordingly, in light of the findings made by the court, the court hereby ORDERS:
I. The defendant's motion for contempt is denied;
II. The plaintiff's unallocated alimony and child support obligation is now $2,692.30 paid bi-weekly based on a calculation of 40% of his gross annual salary of $175,000.00;
A. Said order shall be effective with the payment due on or about December 1, 2015;
B. Said new order is retroactive to October 8, 2015 per agreement of the parties;
C. There is an arrearage as of the week ending November 30, 2015 of $2,697.10;
D. The arrearage is to be paid in full on or before December 15, 2015;
III. The plaintiff is ordered to pay to the defendant legal fees and costs in the amount of $1,556.45 on or before December 15, 2015.