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*********************************************** 
NANCY GIORDANO v. RAY GIORDANO

(AC 42497)

Alvord, Moll and Bishop, Js.

Syllabus

The defendant, whose marriage to the plaintiff previously had been dissolved, appealed to this court from the judgment of the trial court

granting the plaintiff’s motions to modify alimony and for contempt.

Pursuant to the parties’ separation agreement, which was incorporated

into the dissolution judgment, the defendant was required to pay the

plaintiff periodic alimony equal to 30 percent of his gross annual compensation, up to an annual maximum limit. Thereafter, the trial court, following an evidentiary hearing, determined that the alimony provision was

intended to include payments made to the defendant from certain pension benefits and, accordingly, granted the plaintiff’s motion to modify

the alimony order. The court additionally found the defendant in contempt for his failure to pay alimony, and this appeal followed. Held:

1. The defendant could not prevail on his claim that the trial court erred

in interpreting the separation agreement to include his supplemental

pension as a basis for a modification of alimony, which was based on

his claim that the agreement unambiguously did not include that pension

as part of gross annual compensation: the court correctly determined

that the alimony provision was ambiguous, and correctly interpreted

‘‘gross annual compensation’’ as including the supplemental pension;

moreover, the language of the agreement provided that the list of payments qualifying as ‘‘gross annual compensation’’ was not exhaustive,

and it was apparent from the record that counsel and the defendant

contemplated the fact that once he began receiving this supplemental

pension, that event could serve as a basis for the plaintiff to file a motion

to modify.

2. The defendant’s claim that the trial court erred in failing to interpret the

separation agreement as distributing the supplemental pension to him

at the time of dissolution was unavailing; the defendant’s argument

was belied by the facts in the record and arguments of counsel at the

modification hearing, and the fact that the defendant crossed off the

reference to the supplemental pension on his financial affidavit, removing it from the list of property considered marital assets, led this court

to conclude that the supplemental pension was neither considered a

marital asset nor distributed at dissolution.

3. The trial court did not abuse its discretion in modifying the alimony award:

the court properly found that the alimony provision was modifiable with

the exception of the annual maximum limit; the alimony provision was

intended to remain modifiable upon a finding of a substantial change

in circumstances, because there was no provision stating that alimony

was nonmodifiable, and the actions taken by the court and counsel

at the dissolution hearing ensured that the provision would remain

modifiable; moreover, the court found a substantial change in circumstances, and applied the applicable statutory factors (§ 46b-82); furthermore, the court did not abuse its discretion as to the amount of alimony

it ordered because, in order to ensure that the plaintiff received an

award sufficient to maintain the standard of living she enjoyed prior to

the dissolution of the marriage, the court modified the alimony award,

in accordance with the intention of the original alimony order.

4. The trial court improperly granted the plaintiff’s motion for contempt:

although the court found the defendant in contempt for wilfully violating

the separation agreement’s provisions relating to alimony, the court

also indicated that the agreement was ambiguous as to whether the

supplemental pension was considered employment related income; this

court, having agreed with the trial court that the provision was ambiguous, concluded that the alimony order was not clear and that the defendant’s failure to make payments from it could not be considered a wilful

violation of an unambiguous order and, therefore, the record did not

support the court’s conclusion that the defendant’s failure to pay was

wilful.
Argued May 27—officially released September 15, 2020

Procedural History

Action for the dissolution of a marriage, and for other

relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Hon. Dennis F. Harrigan, judge trial referee, rendered judgment

dissolving the marriage and granting certain other relief

in accordance with the parties’ separation agreement;

thereafter, the court, Hon. Michael E. Shay, judge trial

referee, granted the plaintiff’s motions to modify alimony and for contempt, and the defendant appealed

to this court. Affirmed in part; reversed in part; judgment directed.

Peter J. Zarella, with whom, on the brief, was Gary

I. Cohen, for the appellant (defendant).

Samuel V. Schoonmaker IV, with whom, on the brief,

were Wendy Dunne DiChristina and Peter M. Bryniczka, for the appellee (plaintiff).
Opinion

BISHOP, J. In this postmarital dissolution matter, the

defendant, Ray Giordano, appeals from the judgment

of the trial court granting the motions of the plaintiff,

Nancy Giordano,1

for modification and for contempt

relating to the defendant’s failure to pay alimony. We

affirm the judgment of the trial court related to the

plaintiff’s motion for modification of alimony, and we

reverse the court’s finding of contempt against the

defendant.

The following undisputed facts are pertinent to our

consideration of the issues on appeal. The marriage

of the parties was dissolved on November 17, 2004.

Included in the parties’ separation agreement, which

was incorporated into the judgment of dissolution, were

provisions related to periodic alimony that, in essence,

provided for the plaintiff to receive from the defendant

a monthly amount equal to 30 percent of the defendant’s

‘‘ ‘gross annual compensation’ ’’ up to a maximum limit

of $150,000 per annum. In particular, the agreement

provided the following: ‘‘3.1 Commencing as of the first

day of December, 2004, the [defendant] shall pay to the

[plaintiff], during his lifetime, until her death, remarriage, or cohabitation as defined by [General Statutes

§ 46b-86 (b)], whichever event shall first occur, as alimony in a sum equal to [30] percent . . . of the [defendant’s] ‘gross annual compensation’ from employment,

as hereinafter defined; provided, however, that in no

event shall the [plaintiff] receive more than $150,000

per annum as alimony. Accordingly, the [plaintiff] shall

not share in the [defendant’s] ‘gross annual compensation’ in excess of $500,000 in any calendar year.

‘‘3.2 Payments pursuant to paragraph 3.1 shall be

calculated from the [defendant’s] base salary, which

is currently $249,000 per annum and payable in equal

monthly installments on the first day of each calendar

month, in advance. Any payments due to the [plaintiff]

from the [defendant’s] ‘gross annual compensation’ in

excess of $240,000 per year shall be made within three

. . . days of the receipt of such compensation by the

[defendant].

‘‘3.3 (a) For purposes of . . . Article III, ‘gross

annual compensation’ shall mean all employmentrelated payments including, but not limited to, salary,

base salary, bonus, draw, distributions, commission

payments, severance payments, disability payments,

unemployment compensation, and sign-on bonuses

received by the [defendant] in cash, by check or by

electronic transfer before any deductions, including,

but not necessarily limited to, federal, state or municipal

income taxes, social security, Medicare, insurance of

any kind, or payments made voluntarily by the [defendant] to any defined contribution plan, e.g., a 401 (k)

plan or qualified savings plan. ‘Gross annual compensa-
tion’ shall also include income voluntarily deferred by

the [defendant] under a deferred compensation or similar plan and . . . any payments from disability insurance. Any court of competent jurisdiction, upon the

motion of either party, shall retain jurisdiction to modify

alimony except as provided in paragraph 3.1. The

[defendant] shall take no action which has as its purpose the defeating of the [plaintiff’s] right to receive

alimony.

‘‘(b) In the event that the [defendant] is self-employed

or is employed by a privately-held entity where he has

significant control over the amount and/or the structuring of his compensation either by virtue of his direct

or indirect ownership interest in the entity or by virtue

of his position of authority in the entity, a court of

competent jurisdiction, upon the motion of either party,

shall have continuing jurisdiction to modify the definition of ‘gross annual compensation’ so as to ensure that

both parties will be treated fairly in accordance with

the spirit of this Article III.’’

On December 21, 2016, the plaintiff filed a postjudgment motion for modification and, on February 26, 2018,

filed a motion for contempt, both relating to the defendant’s retirement from employment and his failure to

pay alimony. Thereafter, the court, Hon. Michael E.

Shay, judge trial referee, conducted an evidentiary hearing during which Judge Shay determined that the alimony provision in the agreement contained ambiguities

related to the term ‘‘gross annual compensation.’’ Upon

consideration of the language of the agreement, the

colloquy between counsel and the court, Hon. Dennis

F. Harrigan, judge trial referee, at the time of the dissolution, and arguments of counsel and oral testimony at

the modification hearing, Judge Shay determined that

the term ‘‘gross annual compensation’’—which the

agreement further refined to include any compensation

from employment—was intended to include the payments currently being made to the defendant from his

deferred pension benefits.

Considering the amounts of the parties’ respective

incomes and expenses, and considering that the original

purpose of the alimony provision was to enable the

plaintiff to maintain a certain standard of living, the

court modified the periodic alimony order to $8100 per

month. Additionally, the court found the defendant in

civil contempt for his failure to pay alimony, but

declined to issue any sanctions based on this finding.

This appeal followed.

On appeal, the defendant claims that the trial court

erred in (1) failing to interpret the separation agreement

as distributing the supplemental pension to the defendant at the time of the dissolution, (2) interpreting the

separation agreement to include the supplemental pension as a basis for a modification of alimony, and (3)

granting the plaintiff’s motion to modify. We review
each of these claims, albeit in a different order in which

they are presented.

At the outset, we note that ‘‘[o]ur review of a trial

court’s granting or denial of a motion for modification

of alimony is governed by the abuse of discretion standard. . . . To the extent that the trial court has made

findings of fact, our review is limited to deciding

whether such findings were clearly erroneous. . . . In

determining whether a trial court has abused its broad

discretion in domestic relations matters, we allow every

reasonable presumption in favor of the correctness of

its action. . . . Trial courts have broad discretion in

deciding motions for modification.’’ (Citation omitted;

internal quotation marks omitted.) Light v. Grimes, 156

Conn. App. 53, 64, 111 A.3d 551 (2015). To the extent

that the defendant has raised legal issues within his

overarching claim, we review those claims de novo. See

Rudy’s Limousine Service, Inc. v. Dept. of Transportation, 78 Conn. App. 80, 84, 826 A.2d 1161 (2003).

I

The defendant claims on appeal that the trial court

erred in interpreting the separation agreement to

include his supplemental pension as a basis for a modification of alimony. Specifically, the defendant claims

that the separation agreement, in its provisions, unambiguously did not include the supplemental pension as

part of ‘‘gross annual compensation.’’ In response, the

plaintiff claims that the trial court correctly determined

that the alimony provision was ambiguous and correctly

interpreted ‘‘gross annual compensation’’ as including

the supplemental pension. We agree with the plaintiff.

We begin our analysis by setting forth the applicable

standard of review and principles of law. ‘‘It is well

established that a separation agreement that has been

incorporated into a dissolution decree and its resulting

judgment must be regarded as a contract and construed

in accordance with the general principles governing

contracts. . . . When construing a contract, we seek

to determine the intent of the parties from the language

used interpreted in the light of the situation of the

parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the

written words and . . . the language used must be

accorded its common, natural, and ordinary meaning

and usage where it can be sensibly applied to the subject

matter of the contract. . . . When only one interpretation of a contract is possible, the court need not look

outside the four corners of the contract. . . . Extrinsic

evidence is always admissible, however, to explain an

ambiguity appearing in the instrument. . . .

‘‘If a contract is unambiguous within its four corners,

the determination of what the parties intended by their

contractual commitments is a question of law [and our
review is plenary]. . . . When the language of a contract is ambiguous, [however] the determination of the

parties’ intent is a question of fact, and the trial court’s

interpretation is subject to reversal on appeal only if it

is clearly erroneous. . . .

‘‘Accordingly, [t]he threshold determination in the

construction of a separation agreement . . . is

whether, examining the relevant provision in light of

the context of the situation, the provision at issue is

clear and unambiguous, which is a question of law over

which our review is plenary. . . . Contract language is

unambiguous when it has a definite and precise meaning . . . concerning which there is no reasonable basis

for a difference of opinion . . . . The proper inquiry

focuses on whether the agreement on its face is reasonably susceptible of more than one interpretation. . . .

It must be noted, however, that the mere fact that the

parties advance different interpretations of the language in question does not necessitate a conclusion

that the language is ambiguous. . . . A court will not

torture words to import ambiguity where the ordinary

meaning leaves no room for ambiguity . . . .

‘‘In contrast, a contract is ambiguous if the intent of

the parties is not clear and certain from the language

of the contract itself. . . . [A]ny ambiguity in a contract

must emanate from the language used by the parties.

. . . The contract must be viewed in its entirety, with

each provision read in light of the other provisions . . .

and every provision must be given effect if it is possible

to do so. . . . If the language of the contract is susceptible to more than one reasonable interpretation, the

contract is ambiguous.’’ (Citations omitted; internal

quotation marks omitted.) Fazio v. Fazio, 162 Conn.

App. 236, 243–45, 131 A.3d 1162, cert. denied, 320 Conn.

922, 132 A.3d 1095 (2016).

The following language from the separation agreement is relevant to our consideration of this issue: ‘‘3.1

Commencing as of the first day of December, 2004,

the [defendant] shall pay to the [plaintiff], during his

lifetime, until her death, remarriage, or cohabitation as

defined by § 46b-86 (b), whichever event shall first

occur, as alimony in a sum equal to [30] percent . . .

of the [defendant’s] ‘gross annual compensation’ from

employment, as hereinafter defined; provided, however,

that in no event shall the [plaintiff] receive more than

$150,000 per annum as alimony. Accordingly, the [plaintiff] shall not share in the [defendant’s] ‘gross annual

compensation’ in excess of $500,000 in any calendar

year. . . .

‘‘3.3 (a) For purposes of . . . Article III, ‘gross

annual compensation’ shall mean all employmentrelated payments including, but not limited to, salary,

base salary, bonus, draw, distributions, commission

payments, severance payments, disability payments,

unemployment compensation, and sign-on bonuses
received by the [defendant] in cash, by check or by

electronic transfer before any deductions, including,

but not necessarily limited to, federal, state or municipal

income taxes, social security, Medicare, insurance of

any kind, or payments made voluntarily by the [defendant] to any defined contribution plan, e.g., a 401 (k)

plan or qualified savings plan. ‘Gross annual compensation’ shall also include income voluntarily deferred by

the [defendant] under a deferred compensation or similar plan and . . . any payments from disability insurance. Any court of competent jurisdiction, upon the

motion of either party, shall retain jurisdiction to modify

alimony except as provided in paragraph 3.1. The

[defendant] shall take no action which has as its purpose the defeating of the [plaintiff’s] right to receive

alimony.’’

In its memorandum of decision, the court found that

the language of the agreement was ambiguous.2 Upon

our review of the relevant provision of the separation

agreement, we agree with the court that the language

is ambiguous as to what is included in the term ‘‘gross

annual compensation’’ and, specifically, whether that

term would include income from the defendant’s supplemental pension.

We now turn to whether the defendant’s supplemental pension is included in the term ‘‘gross annual compensation.’’ The defendant, a former executive at General Electric (GE), retired subsequent to the dissolution

of the parties’ marriage and began receiving this supplemental pension in the amount of approximately $23,000

per month in October, 2016.3 As noted, paragraph 3.1

of the separation agreement provides that ‘‘gross annual

compensation’’ means ‘‘income from employment’’ and,

on the basis of our review of the court’s colloquy with

counsel at the dissolution hearing, we find no fault in

the court’s conclusion that the supplemental pension

was intended to be included within that framework.

First, we note that the language of § 3.3 (a) of the

separation agreement provides that the list of payments

that qualify as ‘‘gross annual compensation’’ is not

exhaustive because the list ‘‘[includes], but [is] not limited to’’ the items that follow. In addition, at the dissolution hearing, the defendant was questioned by counsel

for the plaintiff and testified that he understood that

the alimony award was subject to modification up to

the cap of $150,000 per annum.4

It is apparent from the

record that counsel and the defendant contemplated

the fact that once he had retired and had begun receiving this supplemental pension, that event could serve

as a basis for the plaintiff to file a motion to modify in

order to attempt to receive some of that supplemental

pension in the form of alimony. Indeed, counsel for the

defendant at the modification hearing invited the court

to consider that colloquy in deciding the issue.5

Accordingly, we conclude that the court did not
improperly interpret the separation agreement as

including the defendant’s supplemental pension within

the definition of ‘‘gross annual compensation.’’

II

The defendant also claims on appeal that the court

erred in failing to interpret the separation agreement

as distributing the supplemental pension to him at the

time of dissolution. Specifically, the defendant claims

that the court incorrectly relied on parol evidence to

rewrite the separation agreement in order to treat the

supplemental pension as if it were undistributed property. The plaintiff argues that the defendant’s claim is

contrary to the position that he took at the modification

hearing, and that article II of the separation agreement

equally divided all of the defendant’s clearly identified

employment related assets, but it did not address the

supplemental pension. We agree with the plaintiff.

At the modification hearing, the court observed that

the defendant had originally listed the supplemental

pension as an asset on his financial affidavit, but had

thereafter specifically crossed it out and placed his

initials next to the change.6 Additionally, counsel for the

defendant at the modification hearing explicitly agreed

that the pension had not been distributed. When questioned by the court as to whether the supplemental

pension had been divided as property at the time of the

marital dissolution, counsel for the defendant remarked

that ‘‘nobody claims that this asset was ever a marital

asset.’’7 Further, at the dissolution hearing, the record

reflects that counsel for the defendant had asked the

defendant if he understood that the supplemental pension was not being divided along with his GE base

pension, to which the defendant responded in the affirmative.8

The defendant’s argument that the supplemental pension had been distributed at the time of dissolution is

belied by the facts in the record and the arguments of

counsel at the modification hearing. In particular, the

fact that the defendant had crossed off the reference

to the supplemental pension on his financial affidavit,

removing it from the list of property to be considered

assets, leads us to the conclusion that the supplemental

pension was neither considered a marital asset nor distributed at dissolution. Additionally, the defendant’s

counsel at the modification hearing repeatedly took the

position that the pension was not a marital asset and,

thus, the defendant’s contradictory argument on appeal

is unavailing.

III

The defendant’s final claim as to the modification of

alimony is that the trial court erred in a number of ways

in granting the motion to modify. Specifically, he claims

that (1) ‘‘[t]he trial court did not modify anything,’’ (2)

‘‘if construed as a modification, the trial court exceeded
its authority,’’ (3) ‘‘there was not a sufficient change of

circumstances to modify alimony,’’ and (4) ‘‘the trial

court made errors in setting the modified alimony.’’ The

plaintiff responds that the trial court, having found a

substantial change in circumstances, did not abuse its

discretion in modifying the alimony award. We agree

with the plaintiff.

First, with respect to whether the court had authority

to modify the alimony order, the court found that the

alimony provision was modifiable with the exception

of the $150,000 cap on what the plaintiff may receive.

We agree with the court’s finding on this issue.

‘‘It is a well settled principle of matrimonial law that

courts have the authority under . . . § 46b-86 to preclude the modification of alimony awards. . . . Section

46b-86 (a) itself provides in relevant part that [u]nless

and to the extent that the decree precludes modification

. . . any final order for the periodic payment of permanent 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. . . . This statute clearly permits a trial

court to make periodic awards of alimony nonmodifiable.’’ (Emphasis omitted; internal quotation marks

omitted.) Brown v. Brown, 148 Conn. App. 13, 24–25, 84

A.3d 905, cert. denied, 311 Conn. 933, 88 A.3d 549 (2014).

In the present case, the alimony provision was clearly

intended to remain modifiable by a court of competent

jurisdiction upon a finding of a substantial change in

circumstances. This is evidenced in the record by the

fact that there is no provision stating that the alimony

provision is nonmodifiable, along with the actions taken

by the court and by counsel at the dissolution hearing

to ensure that the separation agreement made clear

that the alimony provision was to remain modifiable.9

Therefore, once the court found a substantial change

in circumstances, it thereafter had the authority to modify the alimony order. This includes both the authority

to modify the amount of the order, as well as the authority to determine whether the supplemental pension is

characterized as a percentage of the defendant’s earnings; because the percentage provision was not stated

as being nonmodifiable, it is, therefore, modifiable.

Accordingly, we agree with the trial court’s conclusion.

Next, with respect to whether the court erred in finding there to be a substantial change in circumstances

as would warrant a modification of the alimony award

and, further, whether the amount awarded was an abuse

of the court’s discretion, we are mindful that § 46b-86

(a) broadly provides that an alimony award may be

modified by the court upon a showing of a substantial

change in the circumstances of either party, and that a

‘‘trial court’s discretion is essential’’ when it determines

whether a modification is justified. Dan v. Dan, 315

Conn. 1, 9, 105 A.3d 118 (2014). We also adhere to the
following legal principles. ‘‘Trial courts are vested with

broad and liberal discretion in fashioning orders concerning the type, duration and amount of alimony and

support, applying in each case the guidelines of the

General Statutes. If the court considers the relevant

statutory criteria when making its alimony and support

award, the award may not be disturbed unless the court

has abused its discretion.’’ (Internal quotation marks

omitted.) Schwarz v. Schwarz, 124 Conn. App. 472, 485,

5 A.3d 548, cert. denied, 299 Conn. 909, 10 A.3d 525

(2010). ‘‘When the initial award [is] not sufficient to

fulfill the underlying purpose of the award . . . an

increase in the supporting spouse’s salary, in and of

itself, may justify an increase in the award.’’ Dan v.

Dan, supra, 15–16.

In its memorandum of decision, the court found that

there had been a substantial change of circumstances.

Specifically, the court found that, ‘‘there has been a

substantial change of circumstances since the date of

the initial order in that, among other things: (a) the

assets of both the [defendant] and the [plaintiff] have

increased; (b) the [defendant] has retired from his principal employment as of October 1, 2016; and (c) the

[defendant’s] salary and bonus have ceased.’’ The court

also found that, ‘‘in addition, the parties stipulated in

open court . . . that the receipt by the [defendant] of

his supplemental pension would be additional grounds

for the [plaintiff] to seek a modification of the alimony

order; and that the [defendant] did, in fact, become

eligible to commence receipt of payments from the

supplemental pension on or about October 1, 2016.’’

Accordingly, the court, having found a substantial

change in circumstances in light of the termination of

the defendant’s salary and bonuses, in conjunction with

the vesting of his supplemental pension, thereafter

applied the factors in General Statutes § 46b-82, ultimately awarding $8100 per month to the plaintiff in

alimony. We are not persuaded that the court’s action in

this regard would constitute an abuse of its discretion.

With regard to the defendant’s claim that the amount

of alimony ordered was an abuse of discretion, we also

disagree. As found by the trial court, the dissolution

court’s original alimony order was intended to sustain

a certain standard of living for the plaintiff for the

remainder of her or the defendant’s life. This is further

evidenced by the transcript of the dissolution hearing,

in which counsel for the plaintiff states: ‘‘The parties

have agreed that [the plaintiff] is going to receive [30]

percent of [the defendant’s] gross annual compensation

from employment as alimony and it’s payable during

his lifetime, her lifetime, until her death or marriage

or cohabitation.’’ In order to ensure that the plaintiff

received an award sufficient to maintain the standard

of living she enjoyed prior to the dissolution of her

marriage to the defendant; see Dan v. Dan, supra, 315
Conn. 15–16; the court, after identifying a substantial

change in circumstances, modified the alimony award

in accordance with the intention of the original order.

Accordingly, we conclude that the court did not abuse

its discretion in awarding $8100 per month to the

plaintiff.

IV

Finally, with regard to the court’s granting of the

plaintiff’s motion for contempt against the defendant,

the defendant argues that the motion for contempt

should have been denied because there was no basis

for the court to conclude that the parties intended that

the supplemental pension would be part of the defendant’s ‘‘gross annual compensation’’ at the time of dissolution. While we disagree with the defendant’s reasoning, we agree that the motion for contempt should have

been denied.

‘‘A finding of contempt is a question of fact, and our

standard of review is to determine whether the court

abused its discretion in failing to find that the actions

or inactions of the [defendant] were in contempt of a

court order. . . . To constitute contempt, a party’s

conduct must be wilful. . . . Noncompliance alone will

not support a judgment of contempt. . . . A finding

that a person is or is not in contempt of a court order

depends on the facts and circumstances surrounding

the conduct. The fact that an order has not been complied with fully does not dictate that a finding of contempt must enter. . . . [It] is within the sound discretion of the court to deny a claim for contempt when

there is an adequate factual basis to explain the failure

to honor the court’s order.’’ (Internal quotation marks

omitted.) Bauer v. Bauer, 173 Conn. App. 595, 600, 164

A.3d 796 (2017).

‘‘Guided by the principles that limit our review, our

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 wilful or excused by

a good faith dispute or misunderstanding.’’ (Citations

omitted.) In re Leah S., 284 Conn. 685, 693, 935 A.2d

1021 (2007).

In its memorandum of decision, the court found the

defendant in contempt for wilfully violating the separation agreement’s provisions relating to alimony. The

court stated: ‘‘The [defendant] admits that he failed to
make monthly payments commencing in January, 2018

and ending in May, 2018, but excused his failure based

upon the fact that the compensation on which he based

the lump sum payment in June was subject to the

upfront withholding of taxes. . . . Nevertheless, he did

have available alternate sources with which to pay

something. Moreover, the agreement provides that

where a payment is based upon income in excess of

$240,000 per annum, he has an obligation to make his

required payment to her within three days of receipt.

The evidence is clear that he did not make such timely

payment, notwithstanding the fact that he had the

wherewithal to do so.’’ The court then went on to find

that ‘‘the evidence supports a finding that the underlying

order that periodic alimony be paid on a monthly basis

was clear and unambiguous; that the income from the

supplemental pension is an ‘employment related payment’; that the [defendant] failed and neglected to pay

the monthly installments for the months of January

through May, 2018; that the [defendant] had the means

to make said payments; that his choice not to do so

was wilful and amounts to contempt; that his lump sum

payment of $150,000 on June 8, 2018, is a mitigating

factor; and that the [plaintiff] failed to demonstrate any

credible evidence of substantial harm as a result thereof

that would warrant the imposition of sanctions.’’

Also in its memorandum of decision, as well as during

the hearing on the motion for modification, however,

the court expressed its view that the agreement was

ambiguous as to whether the supplemental pension was

considered employment related income for purposes

of its inclusion in the alimony pool. In particular, at the

hearing, the court stated: ‘‘If [the separation agreement]

was perfect you guys wouldn’t be here today. If it was

so clear, if it was not ambiguous you wouldn’t be here

today.’’ The court’s determination that the provision at

issue was ambiguous, with which we agree, leads to

the conclusion that the alimony order was not clear and,

therefore, that the defendant’s failure to make payments

from it could not be considered a wilful violation of

an unambiguous order. In the absence of a clear and

unambiguous order underpinning the court’s finding of

contempt, and on the basis of the court’s own finding

of ambiguity within the alimony order, we conclude

that the record does not support the court’s conclusion

that the defendant’s failure to pay the then existing

alimony order was wilful, and, therefore, that the standard for a finding of contempt was not satisfied.

The judgment is reversed only as to the finding of

contempt and the case is remanded with direction to

deny the plaintiff’s motion for contempt; the judgment

as to the modification of alimony is affirmed.

In this opinion the other judges concurred.

1 The plaintiff is now known as Nancy Evans.

2

In its memorandum of decision, the court, Hon. Michael E. Shay, judge

trial referee, explained that, ‘‘[w]hat was not agreed [to at the time of
dissolution], and which remains in dispute, is whether or not the supplemental pension is to be treated as ‘gross annual compensation’ subject to a

claim by the [plaintiff] for alimony.’’ In addition, at the modification hearing,

the court stated: ‘‘If [the separation agreement] was perfect you guys

wouldn’t be here today. If it was so clear, if it was not ambiguous you

wouldn’t be here today.’’

3 At the modification hearing, the defendant testified that although the

supplemental pension went into pay status on October 1, 2016, following his

official retirement, he did not receive any cash flow from the supplemental

pension until approximately five months later, due to a procedure by which

GE prepays the retiree’s Federal Insurance Contributions Act (FICA) and

Medicare contributions, and the retiree repays GE with the first few payments of the supplementary pension proceeds.

4 During this questioning, the following exchange occurred between the

plaintiff’s counsel and the defendant:

‘‘Q. You understand that the alimony is subject to modification but that

[the plaintiff] can never seek more than $150,000 dollars per year? Correct?

‘‘A. Yes.

‘‘Q. Okay. And, that, if for example, if you should retire and received

supplemental pension payments which haven’t been dealt with in this

divorce, that there is the possibility that she may come back to court and

seek alimony payments based on the fact that you’re getting the supplemental

pension payments?

‘‘A. I understand that she always has the right to come back to court to

seek some change in what we’re agreeing to today.’’

5 At the modification hearing, counsel for the defendant stated: ‘‘[The

plaintiff’s counsel] suggests that Your Honor, and I agree, should review

the transcript of the proceedings before Judge Harrigan and the terms of

the separation agreement that were ultimately approved by the court. And

I respectfully submit that the transcript and the separation agreement both

confirm . . . that the plaintiff’s claim to be awarded a share of [the defendant’s] benefits under the supplemental pension plan to which he did not

become eligible until postjudgment that that source of income is not one

of the sources of income that is enumerated in the separation agreement

and the judgment . . . .’’

6

In its memorandum of decision, the court explained that the defendant

had originally included the supplemental pension as an asset on his October

26, 2004 financial affidavit, but later crossed the entry out after concluding

that his interest in the pension had not yet vested and, therefore, that the

supplemental pension was not marital property subject to equitable division.

The court then remarked: ‘‘In this he was clearly mistaken, as a then recent

decision of the Connecticut Supreme Court clearly and unambiguously held

that ‘unvested pension benefits are property for equitable distribution . . . .’

Bender v. Bender, 258 Conn. 733, [754, 785 A.2d 197] (2001). This holding

was further elucidated in Reville v. Reville, 312 Conn. 428, 451, [93 A.3d

1076] (2014), when the court held that ‘any retirement or employment benefit

potentially receivable by a party to a dissolution action should be disclosed

on that party’s financial affidavit along with all known details as to its value,

vesting requirements and current status.’ [Emphasis omitted.] Despite this,

the supplemental pension, which ultimately did vest, was neither divided

nor offset by other marital property at the time of the dissolution.’’

7 Additionally, in his opening remarks to the court, the defendant’s counsel

at the modification hearing stated: ‘‘I think that Your Honor will find, after

hearing the evidence that [the defendant’s] interest, if any, in this supplemental pension plan did not even spring up as an asset until he qualified as a

participant at some time long after the entry of the dissolution decree

because the terms of this particular plan require that in order for . . . a

GE employee to be eligible for benefits under the plan there are two criteria

that must be met . . . and neither of those criteria had been met as of the

date of the dissolution in 2004.’’

8 At the dissolution hearing, the following exchange occurred between

the defendant and his counsel on redirect examination:

‘‘Q. . . . [P]ursuant to paragraph 2.7, you are dividing your GE pension

plan. Correct?

‘‘A. The base plan that is subject to a [qualified domestic relations order]?

‘‘Q. Yes.

‘‘A. Yes.

‘‘Q. Okay. And you understand that that’s just the base plan and it does

not include the supplemental pension plans?

‘‘A. That’s correct.
‘‘Q. Okay.’’

9 At the dissolution hearing, counsel for both parties and the court engaged

in the following colloquy:

‘‘[The Defendant’s Counsel]: . . . So, just to be clear they’re agreeing that

the alimony can be modified but that the terms in paragraph 3.1 which state

that [the plaintiff] is not to receive more than $150,000 a year in alimony

is nonmodifiable.

‘‘The Court: I think that that’s clear and also that it’s the alimony that’s modifiable.

‘‘[The Plaintiff’s Counsel]: Correct.

‘‘[The Defendant’s Counsel]: Correct.

‘‘The Court: Not the definition.’’