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WILLIAM MARSHALL, JR. v. KIMBERLY MARSHALL

(AC 34674)

Beach, Sheldon and Norcott, Js.

Argued January 14—officially released July 22, 2014

(Appeal from Superior Court, judicial district of

Fairfield, Alander, J. [dissolution judgment]; Klatt, J.

[motions to modify, for contempt].)

George J. Markley, for the appellant (defendant).

Karen L. Dowd, with whom were Brendon P. Levesque and, on the brief, Melissa J. Needle, for the appellee (plaintiff).
Opinion

BEACH, J. The defendant,Kimberly Marshall, appeals

from the rulings of the trial court in favor of the plaintiff,

William Marshall, Jr., on various postjudgment motions.

The defendant claims thatthe court erred in (1) calculating the amount of alimony owed by the plaintiff under

the parties’ separation agreement, (2) denying her

motion for contempt, (3) failing to award statutory

interest and (4) granting the plaintiff’s motion to modify

alimony. We reverse, in part, the judgment of the

trial court.

The following undisputed facts and procedural history are relevant. The parties were married in 1981.

Four children were born of the marriage; only one was

a minor at the time of dissolution. In 2006, the plaintiff

filed a complaint seeking dissolution of his marriage to

the defendant. In May, 2007, the court rendered judgment of dissolution and incorporated by reference a

separation agreement between the parties, which the

court found to be fair and equitable.

In August, 2011, the plaintiff filed a postjudgment

motion to modify alimony on the ground that the

agreement provided that either party had the right to

move for modification of alimony on the basis of a

substantial change in circumstances and that there had

been such a change. In September, 2011, the defendant

filed a postjudgment motion for contempt on the ground

that the plaintiff had failed to pay unallocated alimony

and child support as provided in the agreement. In that

motion, the defendant also sought counsel fees and

statutory interest. In March, 2012, after a hearing on

the motions, the court denied the defendant’s motion

for contempt, declined to award the defendant attorney’s fees or statutory interest, and granted the plaintiff’s motion to modify. This appeal followed.

I

The defendant claims that the court erred in calculating the amount of alimony owed by the plaintiff under

the agreement. We agree and remand the case to the

trial court for further proceedings on this issue.

In domestic relations cases, ‘‘[a] judgment rendered

in accordance with . . . a stipulation of the parties

is to be regarded and construed as a contract. . . .

Accordingly, [o]ur resolution of the [plaintiff’s] claim

is guided by the general principles governing the construction of contracts. A contract must be construed to

effectuate the intent of the parties, which is determined

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. . . .

‘‘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 . . . . Similarly, any ambiguity

in a contract must emanate from the language used in

the contract rather than from one party’s subjective

perception of the terms. . . . [T]he mere fact that the

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

that the language is ambiguous. . . . [I]n construing

contracts, we 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. . . . If a contract is

unambiguous within its four corners, intent of the parties is a question of law requiring plenary review. . . .

When the language of a contract is ambiguous, 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. . . . To identify and to apply the appropriate standard of review,

we must, therefore, initially determine whether the

agreement . . . was unambiguous.’’ (Citation omitted;

internal quotation marks omitted.) McKeon v. Lennon,

147 Conn. App. 366, 272–73, 83 A.3d 639 (2013).

Article 4 of the agreement is entitled ‘‘alimony and

child support.’’ Paragraph 4.1 provides: ‘‘For purposes

of this Article Four, ‘pre-tax income from employment’

shall only include salary and cash bonus received by

the [plaintiff] in cash (or check) from employment

before any deductions, including, but not necessarily

limited to federal, state or municipal income taxes,

social security, Medicare, insurance of any kind, or payments by the [plaintiff] to any defined contribution plan,

e.g. a 401 (k) plan. The foregoing to the contrary notwithstanding, specifically excluded from this definition

of ‘pre-tax income from employment’ shall be . . . (v)

Subchapter S distributions received by the [plaintiff]

by virtue of his forty (40%) percent interest in Artisans

Home Builders, Inc. or other like distributions from any

company in which the [plaintiff] acquires an ownership

interest . . . .’’

Paragraph 4.2 of the agreement provides that, commencing June 1, 2007, and until the death of either

party, the defendant’s remarriage or cohabitation, or

sixty months, whichever shall first occur, ‘‘the [plaintiff]

shall pay unallocated alimony and child support in cash

to the [defendant] as follows: an amount equal to forty

(40%) percent of the [plaintiff’s] pre-tax income from

employment, which income the parties stipulate to be

$192,000 per year.’’ The parties stipulated in paragraph

4.2 that the plaintiff’s ‘‘pre-tax income from employment’’ equaled $192,000 per year. Paragraph 4.2 of the
agreement also explains the derivation of the $192,000

figure: ‘‘The $192,000 pretax income from employment

is based upon the accepted opinion of a joint appraisal

conducted by Meyers, Harrison & Pia as to the fair

market value of the [plaintiff’s] 40% interest in Artisans,

Maker of Fine Homes, Inc. (Artisans).1 Said appraisal

concluded that reasonable and appropriate compensation levels of the [plaintiff] for the year ended in December 1, 2005 is $175,000. In addition to the $175,000, the

parties agree to include, as ‘pre-tax income’ monies

paid directly by Artisans for the benefit of the [plaintiff].

Currently, this direct payment benefit consists of the

payment of medical insurance premium in the approximate annual amount of $17,000. Accordingly, for purposes of modification, the parties have ascribed a base

salary of $175,000 plus additional direct benefits of

$17,000 for a total pretax income of $192,000. Specifically excluded from this pretax income and not to be

considered in a modification hearing is the return on

investment the [plaintiff] receives as an equity holder in

the business.By way of example, in 2005,the [plaintiff’s]

income from wages and salaries (W-2) and S Corporation income (K-1) was $681,982. Notwithstanding,

because the earnings of Artisans (i.e. in sums in excess

of $192,000) were used to value Artisans as an asset,

monies the [plaintiff] receives in excess of $192,000

shall not be considered a ‘pretax income from employment.’ ’’ (Footnote added.)

Paragraph 4.4 provides: ‘‘If the [plaintiff’s] base salary

and direct benefits from Artisans Home Builders, Inc.,

or a subsequent employer, exceeds or is less than

$192,000 . . . [the plaintiff shall notify the defendant].

The change in the [defendant’s] entitlement of the forty

(40%) percent . . . whether more or less, shall be effective on the first day of the month following the [plaintiff’s] receipt of a salary increase or of a salary

decrease.’’2

In its March, 2012 decision, the court found that the

plaintiff paid alimony in accordance with the agreement

in 2007 and 2008, that he reduced alimony payments

to $3200 for the first six months of 2009, and that he

stopped all alimony payments as of July 1, 2009. The

court noted that the plaintiff testified that he was an

owner of Artisans, a company that built custom homes,

and that by 2009, Artisans had suffered a significant

decline in business. The court found that the plaintiff’s

income was $192,000 in 2007, that it had been reduced

to $72,000 by 2009, and remained at approximately

$72,000 for 2010 and 2011.

The court determined that paragraph 4.4 of the

agreement was self-executing and provided a straightforward formula for calculating unallocated alimony

and child support obligation that was based on certain

increases or decreases in income. The court concluded

that the agreement did not provide for the complete
cessation of alimony payments in the event of a change

in income; rather, the plaintiff should have reduced his

alimony payments, in accordance with paragraph 4.4,

to 40 percent of his W-2 income. The court found that

the plaintiff’s yearly W-2 salary in 2009 was $72,000 and

concluded that he owed $2400 per month for that year.

The court found that the plaintiff owed alimony in the

following amounts: $14,400 for the year 2009 (six

months @ $2400/month); $28,800 for the year 2010

(twelve months @ $2400/month); $19,200 for the year

2011 (eight months @ $2400/month); for a total of

$62,400 to be paid in monthly installments of $2400 until

paid in full. The court modified the plaintiff’s alimony

payments pursuant to paragraph 4.6 of the agreement

to $1 per year retroactive to August 31, 2011.

II

The defendant argues that the court erred in its determination of what constituted income under paragraph

4.2. She contends that the court calculated the amount

of alimony due by taking 40 percent of the plaintiff’s

W-2 income only and ‘‘completely ignored the other two

components of the plaintiff’s income, those being his

distributions and his direct benefits of $17,000 per year.’’

We consider each argument in turn.

A

First, the defendant argues that the court erred in

failing to include in its calculation of arrearage the

$17,000 per year the plaintiff received as ‘‘direct benefits.’’ We agree.

Pursuant to paragraph 4.2, the amount of unallocated

alimony and child support owed by the plaintiff equaled

40 percent of his ‘‘pre-tax income from employment

. . . .’’ That paragraph stated that ‘‘pre-tax income from

employment’’ equaled ‘‘base salary’’ plus ‘‘direct benefits . . . .’’ Paragraph 4.2 stated: ‘‘In addition to [base

salary], the parties agree to include, as ‘pre-tax income’

monies paid directly by Artisans for the benefit of [the

plaintiff].Currently, this direct payment benefit consists

of the payment of medical insurance premium in the

approximate annual amount of $17,000.’’ According to

the unambiguous language of paragraph 4.2, then, direct

benefits were specifically to be included in the calculation of unallocated alimony and child support. Neither

party disputes that the amount of ‘‘direct benefits’’ for

2009, 2010 and 2011 that the plaintiff received from

Artisans remained at $17,000.3 The court found that the

plaintiff reduced total alimony and support payments

to $3200 for the first six months of 2009, and that he

stopped all alimony payments as of July 1, 2009.

Because the agreement unambiguously provided for

alimony and child support derived from ‘‘direct benefits,’’ which amounted to $17,000 per year, those

amounts should have been included in the calculation

of the arrearage. On remand, the court is directed to
calculate the arrearage accordingly.

B

Second, the defendant argues that the court erred in

failing properly to determine the amount of the plaintiff’s ‘‘pre-tax income from employment,’’ aside from his

direct benefits, in its calculation of unallocated alimony

and child support. The defendant contends that the

exclusion, in paragraph 4.1, of the plaintiff’s ‘‘[s]ubchapter S distributions’’ from Artisans from the definition

of ‘‘pre-tax income from employment’’ should not be

read in isolation, but rather must be read in conjunction

with other provisions, notably paragraph 4.2, which calculates the amount of alimony and support on the basis

of a stipulated pretax income of $192,000. The $192,000

figure included $17,000 in direct benefits and $175,000

in ‘‘base salary.’’ The defendant argues that the term

‘‘base salary’’ included income designated as W-2

income and also, potentially, amounts that may have

been labeled as distributions.4 The defendant points out

that when the parties entered into the agreement, the

plaintiff’s financial affidavit showed that he had a base

W-2 salary of $130,000, yet the parties stipulated that

his base salary was $175,000, in order to account for the

fair value of compensation for the plaintiff’s services, as

determined by accountants. The defendant argues that

‘‘the $192,000 figure was to be used regardless of how

the plaintiff and his company chose to allocate his compensation between W-2 income and K-1 distributions. It

was specifically because the plaintiff’s base W-2 income

was understated, and because he had shifted so much

of his compensation into distributions, that the language of paragraph 4.2 was arrived at. That language

made clear that a reasonable base compensation for

the plaintiff was $175,000, and if he chose to shift

income into distributions as opposed to his W-2 income,

such fact would not permit him to avoid his alimony

obligations . . . .’’ The defendant argues that if the alimony and child support were to be based on 40 percent

of the plaintiff’s base income as defined by W-2’s, then

the day after the entry of the dissolution judgment

ordering the plaintiff to pay 40 percent of $192,000 in

alimony, the plaintiff would have been able successfully

to modify the alimony payments to 40 percent of

$130,000, which was his W-2 income at the time of

dissolution. The defendant further argues that the plaintiff’s conduct in paying 40 percent of $192,000 throughout 2007 demonstrated the parties’ intent to require the

plaintiff to pay 40 percent of his combined base income,

distributions and direct benefits, up to a maximum of

$192,000 (unless, presumably, his W-2 compensation

exceeded $175,000).

Under paragraph 4.2, unallocated alimony and child

support during the years in question was to amount

to 40 percent of the plaintiff’s ‘‘pre-tax income from

employment . . . .’’ Paragraph 4.2 of the agreement
provided that the amount of the plaintiff’s ‘‘pre-tax

income from employment’’ was to be determined by

adding a stipulated ‘‘base salary’’ of $175,000 to the

plaintiff’s ‘‘additional direct benefits’’ of $17,000, for a

total stipulated ‘‘pre-tax income from employment’’ of

$192,000. Specifically, the base salary was based on the

accepted opinion of a joint appraisal as to the ‘‘fair

market value of the [plaintiff’s] 40 [percent] interest in

. . . Artisans,’’ and the ‘‘reasonable and appropriate

compensation’’ of the plaintiff by Artisans.

The agreement is ambiguous as to whether the plaintiff’s distributions from Artisans, or K-1 income, were

to be included in ‘‘pre-tax income from employment’’

and, if so, to what extent. Paragraph 4.1 specifically

excludes ‘‘[s]ubchapter S distributions’’ from the definition of ‘‘pre-tax income from employment.’’ Paragraph

4.2, however, does not limit ‘‘pre-tax income from

employment’’ to W-2 income only. That paragraph

defines ‘‘pre-tax income from employment’’ as ‘‘base

salary’’ plus additional benefits. In paragraph 4.2, the

parties used the fair market value of the plaintiff’s 40

percent interest in Artisans to arrive at ‘‘reasonable

and appropriate compensation levels’’ for the plaintiff’s

‘‘base salary’’ for the 2005 tax year. The plaintiff’s 2007

amended federal 1040 form indicated that his W-2

income was $126,144, which amount is less than the

stipulated amount in paragraph 4.2 of $175,000 for the

plaintiff’s base salary.5 Paragraph 4.4 provides for a

modification if the plaintiff’s ‘‘base salary and direct

benefits’’ should be greater or less than $192,000. In

order to reconcile paragraphs 4.1 and 4.2, and to determine the extent to which K-1 income is to be included

in the calculation of ‘‘base salary,’’ the trial court must

engage in fact-finding as to the intent of the parties.

See, e.g., Page v. Page, 77 Conn. App. 748, 749, 825 A.2d

187 (2003) (where contract language ambiguous, intent

of parties is question of fact to be determined on

remand). Because the agreement is ambiguous, we

remand the case to the trial court in order to determine

the intent of the parties and to determine the arrearage accordingly.

III

A

The defendant next claims that the court erred in

failing to find the plaintiff in contempt. The trial court

found that paragraph 4.4 of the agreement was selfexecuting, and that the plaintiff was entitled to reduce

his alimony and support payments without resort to an

order of modification by the court. The court determined, however, that the separation agreement did not

provide forthe complete cessation of alimony payments

in the circumstances, as the plaintiff continued to

receive some compensation. The court determined that

the plaintiff should have reduced his alimony and support payments to 40 percent of his pretax income, as
set forth in paragraph 4.4, and should not have stopped

making alimony payments altogether. The court

declined to find the plaintiff in wilful contempt.

Following oral argument, this court asked the trial

court to articulate ‘‘the factual and legal bases for concluding, in the memorandum dated March 15, 2012, that

the plaintiff was not in contempt for having ceased

paying all alimony after July 1, 2009.’’ The court

explained that it had credited the plaintiff’s testimony

that he did not intend to violate the separation

agreement and, rather, believed that his actions were

in accordance with the agreement. The court further

noted that the plaintiff took action to modify the order

when it appeared that there was a dispute regarding

the interpretation of the agreement.

The defendant argues that the court erred in denying

her motion. She contends that nothing in the agreement

permitted the plaintiff to stop making all alimony payments. Accordingly, she reasons that the plaintiff’s conduct in so doing was clearly wilful. The defendant

further argues that because the court erred in using

only W-2 income to calculate the amount of arrearage

and also failed to include direct benefits and the appropriate amount of distributions in its calculations, its

findings as to contempt are likewise defective.

‘‘[O]ur analysis of a judgment of contempt consists

of two levels of inquiry. First, we must resolve the

threshold question of whetherthe 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 whetherthe 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.’’

(Internal quotation marks omitted.) Buehler v. Buehler,

138 Conn. App. 63, 72, 50 A.3d 372 (2012).

‘‘The abuse of discretion standard applies to a trial

court’s decision on a motion for contempt. . . . A finding of contempt is a question of fact, and our standard

of review is to determine whether the court abused its

discretion in [finding] that the actions or inactions of

the [party] 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. . . . We review the court’s factual findings in the context of a motion for contempt to determine whether they are clearly erroneous. . . . A

factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is

evidence to support it, but the reviewing court is left

with the definite and firm conviction that a mistake
has been made.’’ (Internal quotation marks omitted.)

Oldani v. Oldani, 132 Conn. App. 609, 625–26, 34 A.3d

407 (2011).

‘‘In a civil contempt proceeding, the movant has the

burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.’’ Statewide Grievance Committee

v. Zadora, 62 Conn. App. 828, 832, 772 A.2d 681 (2001).

‘‘[I]nability to pay is a defense to a contempt motion.

However, the burden of proving inability to pay rests

upon the obligor.’’ (Internal quotation marks omitted.)

Ahmadi v. Ahmadi, 294 Conn. 384, 397, 985 A.2d 319

(2009).

The court found the agreement to be clear and to

require the plaintiff to pay in alimony 40 percent of his

W-2 income. The court articulated that it nonetheless

had found that the defendant’s conduct was not wilful.

The court stated that it had credited the plaintiff’s testimony that he had not intended to violate the separation

agreement, but rather believed that his actions were in

accordance with the agreement. The court did not abuse

its discretion in determining that the plaintiff’s violation

involved a good faith misunderstanding of the

agreement; see In re Leah S., 284 Conn. 685, 693–94,

935 A.2d 1021 (2007); even though the order was objectively clear.

As stated in part I B of this opinion, the agreement

is ambiguous as to whether and to what extent K-1

income properly was to be factored into the calculation

of alimony. Although we remand the case for further

proceedings on this limited issue, we discern no basis

on which to disturb the court’s conclusions regarding

contempt. The court’s failure to find wilfulness—an

issue on which the defendant had the burden of proof—

would not logically be altered on remand. Factors such

as whether the plaintiff did not have the ability to pay

at the time or whether he misunderstood the obligation

in good faith would not be different at the time of

remand.

B

The defendant next claims that the court erred in

failing to award her counsel fees pursuant to General

Statutes § 46b-87, which provides in relevant part that

‘‘[w]hen any person is found in contempt of an order

of the Superior Court . . . the court may award to the

petitioner a reasonable attorney’s fee . . . .’’ Because

we affirm the court’s finding regarding contempt, we

also affirm on the issue of attorney’s fees.

IV

The defendant next claims that the court erred in

failing to award statutory interest under General Statutes § 37-3a. We are not persuaded.

Our review of a trial court’s determination regarding
whether to award statutory interest is governed by the

abuse of discretion standard. See Maloney v. PCRE,

LLC, 68 Conn. App. 727, 755–56, 793 A.2d 1118 (2002).

‘‘[T]here is no right to recover interest in a civil action

unless a statute provides for interest.’’ (Internal quotation marks omitted.) Nation Electrical Contracting,

LLC v. St. Dimitrie Romanian Orthodox Church, 144

Conn. App. 808, 820, 74 A.3d 474 (2013). Section 37-3a

provides in relevant part that ‘‘interest at the rate of

ten per cent a year, and no more, may be recovered

and allowed in civil actions . . . as damages for the

detention of money after it becomes payable. . . .’’

‘‘[T]he primary purpose of § 37-3a . . . is not to punish

persons who have detained money owed to others in

bad faith but, rather, to compensate parties that have

been deprived of the use of their money.’’ Sosin v.

Sosin, 300 Conn. 205, 230, 14 A.3d 307 (2011).

‘‘[T]he court’s determination [as to whether interest

should be awarded under § 37-3a] should be made in

view of the demands of justice rather than through the

application of any arbitrary rule. . . . Whether interest

may be awarded depends on whether the money

involved is payable . . . and whether the detention of

the money is or is not wrongful under the circumstances. . . . [W]e have construed [§ 37-3a] to make

the allowance of interest depend [on] whether the

detention of the money is or is not wrongful under the

circumstances.’’ (Citations omitted; internal quotation

marks omitted.) Id., 229. ‘‘Although bad faith is one

factorthat the court may look at when deciding whether

to award interest under § 37-3a . . . in the context of

the statute, wrongful is not synonymous with bad faith

conduct. Rather, wrongful means simply that the act is

performed without the legal right to do so.’’ (Internal

quotation marks omitted.) Ferrato v. Webster Bank, 67

Conn. App. 588, 596, 789 A.2d 472, cert. denied, 259

Conn. 930, 793 A.2d 1084 (2002).

‘‘The trier of fact may award prejudgment interest,

as an element of damages, for the detention of money

after it becomes payable if equitable considerations

deem that such interest is warranted. . . . An award

of such interest is an equitable determination lying

within the trier’s sound discretion. . . . The determination is one to be made in view of the demands of justice

rather than through the application of an arbitrary rule.

. . . A trial court must make two determinations when

awarding compensatory interest under § 37-3a: (1)

whether the party against whom interest is sought has

wrongfully detained money due the other party; and

(2) the date upon which the wrongful detention began

in order to determine the time from which interest

should be calculated. . . . A plaintiff’s burden of demonstrating that the retention of money is wrongful

requires more than demonstrating that the opposing

party detained money when it should not have done
so. The fact that an award of such interest is discretionary and subject to equitable considerations, rather than

automatic, reflects the reality that not all improper

detentions of money are wrongful.’’ (Citation omitted;

internal quotation marks omitted.) Smithfield Associates, LLC v. Tolland Bank, 86 Conn. App. 14, 26, 860

A.2d 738 (2004), cert. denied, 273 Conn. 901, 867 A.2d

839 (2005).

The defendant argues that the plaintiff’s detention of

alimony and support payments was ‘‘wrongful,’’ and

that the court’s failure to so find was influenced by its

perhaps erroneous calculation of the amount of arrearage due and its finding that the plaintiff was not in

wilful contempt, which, according to the defendant,

was erroneous. The explanation advanced by the defendant for the court’s failure to award statutory interest

is speculative. The court summarily stated that it

declined to impose statutory interest on the amount of

alimony owed by the plaintiff.6 We could only speculate

as to what equitable considerations informed the court’s

decision. ‘‘In the absence of an adequate record, we

presume that the trial court, in rendering its judgment

undertook the proper analysis of the law and the facts.’’

Rollar Construction & Demolition,Inc. v. Granite Rock

Associates, LLC, 94 Conn. App. 125, 134, 891 A.2d 133

(2006). We do not conclude that the court abused its

discretion in declining to award statutory interest.

V

The defendant last claims that the court erred in

granting the plaintiff’s motion to modify alimony. We

agree.

Paragraph 4.6 of the separation agreement provides:

‘‘Either party shall have the right to move for modification of the provisions of paragraphs 4.1, 4.2 and 4.3 in

the event there is a substantial change in the nature of

the [plaintiff’s] compensation and/or the [plaintiff] is

no longer employed by Artisans Home Builders, Inc.

and/or no longer has an ownership interest in Artisans

Home Builders, Inc. Either party shall have the right to

move for modification of the provisions of paragraphs

4.1, 4.2 and 4.3 based on a showing of a substantial

change in the circumstances of either party as provided

in Connecticut General Statutes § 46b-86 (a).’’7

Our review of a trial court’s granting or denial of a

motion for modification of alimony is governed by the

abuse of discretion standard. Jansen v. Jansen, 136

Conn. App. 210, 223, 46 A.3d 201, cert. denied, 306 Conn.

902, 52 A.3d 729 (2012). ‘‘To the extent that the trial

court has made findings of fact, our review is limited

to deciding whether such findings were clearly erroneous.’’ (Internal quotation marks omitted.) Nicholson v.

Nicholson, 66 Conn. App. 885, 887, 786 A.2d 462 (2001).

Claiming a change in the incomes of the parties, the

plaintiff moved to modify the terms of the agreement,
pursuant to paragraph 4.6, in order that he would be

liable to pay less alimony. The court made the following

relevant factual findings. The plaintiff’s income was

$192,000 in 2007, $127,591 in 2008, and $72,000 in 2009

and 2010, respectively. The defendant earned $44,680

in 2009, approximately $14,000 of which was alimony

received. In 2010, she returned to full-time employment

and earned $100,000, and she was expected to earn

similar amounts subsequently. Because the plaintiff’s

earnings had decreased by more than 60 percent, the

court concluded that there had been a substantial

change in the plaintiff’s income. The court furtherfound

that the defendant had returned to full-time employment and that her earnings exceeded those of the plaintiff. In light of the current income disparity between

the parties, the court granted the plaintiff’s motion for

modification and reduced alimony payments pursuant

to paragraph 4.6 to $1 per year retroactive to the date

of the modification motion, August 31, 2011.

The defendant argues that the court improperly

granted the plaintiff’s motion for modification because

three of its underlying factual findings were clearly

erroneous: (1) the plaintiff’s income was $192,000 in

2007, $127,591 in 2008, and $72,000 in 2009 and 2010,

respectively; (2) the plaintiff’s income had decreased

by more than 60 percent; and (3) after she returned to

full-time employment, the defendant’s earnings

exceeded the plaintiff’s by nearly $30,000. The defendant contends that ‘‘[f]or the year 2007, the court used

as the plaintiff’s income the presumptive amount under

paragraph 4.2 of the agreement, being a total of

$192,000, including the $17,000 in direct benefits and

whatever amounts of W-2 income and subchapter S

distributions were necessary to reach that $192,000

total. For 2008, however, the court only used the plaintiff’s W-2 income, and did not include the direct benefits

of $17,000 or the subchapter S distributions of $13,361.

Similarly, for 2009, the court considered only the W-2

income of $72,000 and ignored the $17,447 in direct

benefits that the plaintiff received. And for 2010 and

2011, the court ascribed only $72,000 in income to the

plaintiff, despite the fact that his combined W-2 income,

distributions and direct benefits totaled $178,079 in

2010 and the plaintiff suggested that his income in 2011

was similar. Had the court compared the plaintiff’s

income in those years as it actually was, instead of

comparing the full $192,000 presumptive income in 2007

solely with the W-2 component in later years, it would

have shown a far less dramatic reduction between 2007

and 2011 . . . .’’ (Footnote omitted.) The defendant

further argues that the plaintiff’s income did not

decrease by more than 60 percent because (1) the 2007

income as found by the court included direct benefits

and some K-1 distributions, while the court’s findings

as to income in the remaining years included only W2 income; (2) the plaintiff controlled the amount of his
W-2 income and could increase or decrease it at will;

and (3) the agreement provided that his annual income

would be deemed to be at least $175,000 regardless of

whether it consisted of W-2 income or K-1 income. The

defendant also argues that the court’s finding that the

defendant’s earnings exceeded the plaintiff’s income

by nearly $30,000 was based on a calculation of the

defendant’s income that included only W-2 income.

We agree with the defendant. The court erred in comparing ‘‘apples and oranges’’ and determining the

amount of the plaintiff’s compensation for 2007 through

2011, and calculating a 60 percent change in income by

comparing the stipulated income of $192,000 in 2007,

which included direct benefits and some K-1 income,

with the plaintiff’s W-2 income only for the subsequent

years. Paragraph 4.6 specifies that either party shall

have the right to move for modification of in the event

there is a ‘‘substantial change in the nature of the [plaintiff’s] compensation . . . .’’ It is perhaps significant

that the agreement uses the term ‘‘compensation,’’ in

paragraph 4.6, rather than ‘‘pre-tax income’’ or another

term previously used in article 4. In any event, because

the factual basis underlying the court’s granting of the

plaintiff’s motion for modification is clearly erroneous,

we remand this issue to the trial court for further proceedings.8

The judgment is reversed with respect to the granting

of the plaintiff’s motion to modify alimony and the calculation of the amount of the alimony arrearage owed

by the plaintiff to the defendant and the case is

remanded for further proceedings consistent with this

opinion. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

1 The agreement contains two different corporate names for the Artisans

enterprise. The parties appear to make no distinction; we treat the enterprise

as one business and refer to it simply as ‘‘Artisans.’’

2 Paragraph 4.4 provided that the plaintiff immediately was to notify the

defendant of a change in base salary and direct benefits. The court concluded

that such notification had occurred.

3 The plaintiff, however, argues that the court did not improperly exclude

the $17,000 in direct benefits from its calculation of arrearage.

4 According to the defendant, the agreement contemplated thatreasonable

compensation for services was, as established by accountants, $175,000

annually, and the labeling of the amounts received by the plaintiff was

somewhat discretionary. If the total of W-2 income and K-1 distributions

was less than $175,000, then the amount of alimony and support would be

derived from the actual amount received. If the W-2 amount equaled or

exceeded $175,000, then alimony and support would be calculated from

only the W-2 amount. Additionally, if the W-2 amount was less than $175,000,

but the addition of a portion of the K-1 distributions would create the sum

of $175,000, then alimony and child support would be based on $175,000—

plus, of course, the $17,000 of direct benefits.

5 Paragraph 4.2 provides that commencing June 1, 2007, the plaintiff shall

pay unallocated alimony and child support. The amount of alimony and

child support was based, in part, on an appraisal that determined that

‘‘reasonable and appropriate compensation levels’’ of the plaintiff for the

year ended on December 31, 2005, was $175,000.

6 Although the court found that the agreement did not allow the plaintiff

to stop alimony payments, this finding is not necessarily inconsistent with

its declining to award statutory interest because awards of statutory interest

are subject to equitable considerations that reflect the reality that not all
improper detentions of money are wrongful. See Smithfield Associates,

LLC v. Tolland Bank, supra, 86 Conn. App. 26. Furthermore, the plaintiff

makes no argument that these findings are inconsistent.

7 General Statutes § 46b-86 (a) provides in relevant part: ‘‘Unless and to

the extent that the decree precludes modification, any final order for the

periodic payment of permanent alimony or support . . . may, at any time

thereafter, be . . . modified by the court upon a showing of a substantial

change in the circumstances of either party . . . .’’

8 The defendant further argues that the court failed to consider the factors

set forth in General Statutes § 46b-82. Because we remand the issue to the

trial court for further proceedings, we need not address this issue. We do

note, however, that ‘‘[o]nce a party has met his or her burden under either

§ 46b-86 (a) or (b), the court then should apply the factors of § 46b-82 to

fashion a new alimony award.’’ (Internal quotation marks omitted.) Dan v.

Dan, 137 Conn. App. 728, 732–33, 49 A.3d 298, cert. granted on other grounds,

307 Conn. 924, 55 A.3d 565 (2012).