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BRIAN DOLAN v. DEBRA DOLAN
(AC 43602)
Moll, Clark and DiPentima, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from the judgment of the trial court
granting his motion to modify his unallocated alimony and child support
obligation. In his motion, the plaintiff requested to modify certain provi-
sions of the parties’ separation agreement, which had been incorporated
into the judgment of dissolution, on the basis of, inter alia, his loss of
employment and decrease in income. The parties’ separation agreement
provided in relevant part that the plaintiff was required to pay unallo-
cated alimony and child support to the defendant, which was calculated
on the basis of the plaintiff’s ‘‘pre-tax compensation from employment’’
and included a minimum payment per month. The separation agreement
defined ‘‘pre-tax compensation from employment’’ to include any and
all earnings of any nature whatsoever actually received by the plaintiff
in the form of cash or cash equivalents, or which the plaintiff is entitled
to receive, from any and all sources relating to the services rendered
by the plaintiff by way of his current or future employment. At a hearing
on the plaintiff’s motion, the plaintiff claimed that he had no income,
but, when asked, testified that he receives interest and dividend income
that he had failed to list on his financial affidavit. The court subsequently
granted the plaintiff’s motion, finding that there was a substantial change
in the parties’ circumstances. The court ordered, inter alia, that the
plaintiff was not required to pay the defendant a minimum amount of
unallocated alimony and child support per month. The court also
ordered, as proposed by the defendant, that the definition of ‘‘pre-tax
compensation from employment’’ set forth in the parties’ separation
agreement be modified to include income from all sources, including
passive income from capital gains, interest and dividends, and income
from business interests and other investments. Held that the plaintiff
could not prevail on his claim that the trial court abused its discretion
in modifying the definition of ‘‘pre-tax compensation from employment’’
in the parties’ separation agreement: although the plaintiff argued that
the court’s inclusion of capital gains, interest and dividends, and income
from business interests and other investments conflicted with our
Supreme Court’s decision in Gay v. Gay (266 Conn. 641), that case
was materially different from the present case in that it involved a
modification pursuant to statute (§ 46b-86 (a)), which required the court
to consider certain statutory (§ 46b-82) criteria and did not involve a
separation agreement like the one in the present case, which expressly
defined the term ‘‘pre-tax compensation from employment’’ and set forth
specific, contractual parameters for modifying that definition; moreover,
it was clear that the parties here, in their separation agreement, intended
to give the court broad discretion to modify the definition of ‘‘pre-tax
compensation from employment’’ to ensure that they were treated fairly
in accordance with the spirit of the agreement, not in accordance with
the criteria set forth in § 46b-82.
Argued December 7, 2021—officially released June 7, 2022
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk, where the court, Hon. Stan-
ley Novack, judge trial referee, rendered judgment dis-
solving the marriage and granting certain other relief
in accordance with the parties’ separation agreement;
thereafter, the court, M. Moore, J., granted the plaintiff’s
motion to modify unallocated alimony and child sup-
port; subsequently, the court, M. Moore, J., denied the
plaintiff’s motion for reargument and reconsideration,
and the plaintiff appealed to this court. Affirmed.
Logan A. Carducci, for the appellant (plaintiff).
Samuel V. Schoonmaker IV, for the appellee (defen-
dant).
Opinion
CLARK, J. In this matter arising after the dissolution
of the parties’ marriage, the plaintiff, Brian Dolan,
appeals from the judgment of the trial court granting a
postjudgment motion to modify his unallocated alimony
and child support obligation to the defendant, Debra
Dolan. The sole issue on appeal is whether the court
erred in modifying the definition of ‘‘pre-tax compensa-
tion from employment’’ in the parties’ separation agree-
ment, which was incorporated by reference into the
judgment of dissolution, to include ‘‘income from all
sources, including passive income from capital gains,
interest and dividends, and income from business inter-
ests and other investments.’’ In the plaintiff’s view, the
court’s modification of the definition ran afoul of our
Supreme Court’s decision in Gay v. Gay, 266 Conn. 641,
835 A.2d 1 (2003). We disagree and affirm the judgment
of the trial court.
The following procedural history and facts are rele-
vant to our resolution of the appeal. The parties were
married in 1993 and are the parents of four children
issue of the marriage.1 On May 9, 2013, the trial court,
Hon. Stanley Novack, judge trial referee, rendered judg-
ment dissolving the parties’ marriage that incorporated
by reference the parties’ May 8, 2013 separation agree-
ment (agreement).
Pursuant to the agreement, the plaintiff is required
to pay unallocated alimony and child support to the
defendant until her death, remarriage, or cohabitation,
or until May 14, 2023, whichever occurs first. The per-
centage of his ‘‘pre-tax compensation from employ-
ment’’ that he is required to pay to the defendant each
calendar year is based on the amount of pretax compen-
sation from employment that he receives in that given
year. Specifically, in accordance with paragraph 4.2 of
the agreement, the plaintiff is required to pay the defen-
dant each calendar year as unallocated alimony and
child support as follows:
Percentage to [the
[The Plaintiff’s] PTCE Defendant]
$0-$250,000 50%
$250,001-$450,000 35%
$450,001-$600,000 25%
$600,000 and above 0%
Paragraph 4.2 further provides that, ‘‘[u]nless and
until modified by [the] [c]ourt, or agreed to by the [p]ar-
ties, the [plaintiff] shall pay the [defendant] a minimum
of [$10,416] per month.’’
Under paragraph 4.4 of the agreement, ‘‘ ‘pre-tax com-
pensation from employment’ ’’ is defined as ‘‘any and
all earnings of any nature whatsoever actually received
by the [plaintiff] in the form of cash or cash equivalents,
or which the [plaintiff] is entitled to receive, from any
and all sources relating to the services rendered by the
[plaintiff] by way of his current or future employment,
including, but not limited to, salary and bonus, exercis-
able stock options, stock grants, equity units, contract
payments, commission payments, voluntary payments
to qualified and non-qualified retirement plans, disabil-
ity income, board of directors’ fees, severance pay-
ments, excess compensation, consulting fees, director’s
fees and restricted stock and stock options granted
after the date of dissolution of marriage, received by
the [plaintiff] from employment. Income from restricted
stock and stock options shall be considered [pre-tax
compensation from employment] in the year the [plain-
tiff] must report this income on his federal tax return.
Capital gains, interest and dividends and all other
income earned by the [plaintiff] due to his investment
of assets or sale of stock distributed to him in connec-
tion with the divorce proceeding or earned by the [plain-
tiff] based upon assets acquired outside of his employ-
ment by the [plaintiff] in the future shall not be
considered in the definition of the [plaintiff’s pre-tax
compensation from employment] herein.’’
Paragraph 4.3 of the agreement provides in relevant
part that ‘‘[t]he alimony payments under the terms of
this [a]rticle IV shall be non-modifiable so as to extend
the duration of said payments, and any decree of any
[c]ourt incorporating any or all of the provisions hereof
shall preclude such modification. The amount of the
alimony payments under the terms of this [a]rticle IV
shall be subject to modification as to amount pursuant
to . . . [General Statutes § 46b-86 (a)], except: in any
calendar year, the [defendant] shall be entitled to
receive [pre-tax compensation from employment] in an
amount of [$35,000] or less without such occurrence
constituting a substantial change in circumstances. In
any hearing for modification of alimony, the court shall
not consider the first [$35,000], of the [defendant’s] [pre-
tax compensation from employment] in any calendar
year in determining whether a substantial change of
circumstances has occurred. Proration for any year in
which alimony is owed for only part of that year, shall
apply to the provisions of this [p]aragraph.’’
In regard to modifying the definition of ‘‘pre-tax com-
pensation from employment,’’ paragraph 4.5 of the
agreement provides: ‘‘Any court of competent jurisdic-
tion, upon motion by either [p]arty, shall retain jurisdic-
tion to modify the definition of [pre-tax compensation
from employment] so as to ensure that both [p]arties
are treated fairly in accordance with the spirit of this
[a]greement. Neither [p]arty shall be required to demon-
strate a substantial change in circumstances with regard
to any such modification.’’
On January 4, 2019, the plaintiff filed the subject
motion to modify, requesting that the court ‘‘modify
articles IV, V, VI, VII, and VIII’’ of the agreement that
was incorporated into the May 9, 2013 dissolution of
marriage judgment. In support of that motion, the plain-
tiff represented to the court that a chronic medical
condition forced him to leave his high paying job, which
resulted in a dramatic decrease in his income. Accord-
ingly, he requested various changes to the agreement,
including, inter alia, that the court delete the provision
in article IV of the agreement that requires him to pay
the defendant a minimum of $10,416 per month. He
argued that modification of this provision was neces-
sary because two of the parties’ children had attained
the age of majority and completed four year, postsec-
ondary degrees and, ‘‘[m]ore importantly, the minimum
monthly payment dictated by the above requires [the
plaintiff] to pay the defendant over 90 percent of his
disability income.’’ The plaintiff also requested that the
percentages of pretax compensation from employment
he owed to the defendant under the agreement be
reduced, that the amount of life insurance he was
required to maintain be lowered, and that the court
replace the parenting plan in the dissolution judgment
with a new plan as outlined in his motion.
Prior to a hearing on the motion to modify, both
parties submitted proposed orders to the court. The
plaintiff’s proposed orders mirrored the requests he
made in the motion to modify. On August 12, 2019,
the defendant filed her proposed orders, in which she
proposed, inter alia, (1) that the plaintiff’s unallocated
alimony and child support obligation continue in full
force and effect pursuant to the separation agreement,
(2) that the definition of ‘‘pre-tax compensation from
employment’’ set forth in paragraph 4.4 of the agree-
ment be modified to include income from all sources,
including passive income from capital gains, interest
and dividends, and income from business interests and
other investments, and (3) that the plaintiff will not be
required to pay the defendant a minimum of $10,416
per month for a period of one year and, in the event
that the plaintiff earns in excess of $600,000, gross, in
one year from all sources, he will pay the defendant 20
percent of the gross amount above $600,000 as unallo-
cated alimony and child support. The defendant also
made proposals with respect to health insurance for
the parties’ two minor children, in addition to a parent-
ing plan.
The trial court held a hearing on the motion to modify
on August 13, 2019, and issued its order regarding the
motion on September 25, 2019. The court found that
for years, the plaintiff enjoyed substantial income to
the point that he was paying the maximum amount of
alimony and child support provided for under the par-
ties’ separation agreement. At the time of dissolution
in 2013, the plaintiff’s gross monthly income was
$20,833, and his net monthly income was $14,750. In
October, 2018, however, the plaintiff’s issues became
overwhelming and he stopped working. The court found
that the plaintiff had struggled with mental health
issues, and suffered from depression, anxiety, panic
attacks, stress, and alcohol abuse for twenty years. He
obtained short-term disability payments, but was
denied long-term disability payments. At the hearing,
the plaintiff testified that he obtained a license to sell
real estate; however, he did not know whether he would
work in that field. He also was unsure of his plans for
the future and was living off his savings. The plaintiff
claimed that he had no income, but, when asked, testi-
fied that he receives interest and dividend income that
he had failed to list on his financial affidavit. The court
found that, in 2017, the plaintiff received $12,794 in
dividend income and, in 2018, he received $14,387 in
qualified dividend income. He has weekly expenses and
liabilities of $5586. The total cash value of his assets is
$2,173,300.
With respect to the defendant, the court found that
she is employed part-time outside the home. On the
basis of the child support guidelines calculation, her
net income from employment and qualified dividend
income is $554 per week. She has $3243 in total net
weekly expenses and liabilities and the total cash value
of her assets is $1,119,370. The court found that the
defendant, too, has suffered from mental health issues
and in December, 2018, she was hospitalized. During
her hospitalization, the plaintiff assumed the role of
primary parent for the parties’ minor children.
The court found that there was a substantial change
in circumstances since the most recent court order and
that it would be unjust or inequitable to hold either
party to that order. In granting the plaintiff’s motion,
the court found that the presumptive amount of child
support was $92 per week from the plaintiff to the
defendant, but that the application of the guidelines
would be inequitable and inappropriate in the present
case. The court therefore deviated from the guidelines
on the basis of the coordination of total family support
and the parties’ shared parenting plan and ordered that
‘‘the definition of ‘pre-tax compensation from employ-
ment’ set forth in paragraph 4.4 of the parties’ separa-
tion agreement will be modified to include income from
all sources, including passive income from capital
gains, interest and dividends, and income from busi-
ness interests and other investments. The [unallocated
alimony and child support payment] formula set forth
in paragraph 4.2 of the separation agreement dated May
8, 2013, will remain in effect, except the [plaintiff] will
not be required to pay the [defendant] a minimum
amount per month.’’ (Emphasis added.) Additionally,
the court ordered the plaintiff to provide to the defen-
dant: (1) notice of any job offers or acceptances; and
(2) documentation of any determination that he has
become completely disabled, along with copies of his
first three disability checks. Furthermore, the court
reduced the amount of life insurance the plaintiff was
required to maintain from $1,250,000 to $500,000, and
modified the parenting plan.
On October 9, 2019, the plaintiff filed a motion for
reargument and reconsideration of the court’s order.
In his motion, the plaintiff acknowledged that the defen-
dant rightly had brought to the court’s attention income
from dividends and interest that he had not included
on his financial form, but stated that there was no evi-
dence that he has a steady stream of revenue from
capital gains. He contended that the court had misap-
plied the controlling law by modifying the term ‘‘pre-
tax compensation from employment’’ to include capital
gains, including those from passive investments in busi-
ness, in violation of Gay v. Gay, supra, 266 Conn. 647–
48. He asked the court to delete ‘‘capital gains’’ and the
phrase ‘‘and income from business interests and other
investments’’ from its order.2 The court summarily
denied the plaintiff’s motion for reargument and recon-
sideration.
The defendant, too, filed a motion for reargument
and reconsideration of the court’s September 25, 2019
order. She argued that the court should have taken
into account the assets of the parties and the plaintiff’s
earning capacity, not only the income from the plain-
tiff’s assets. The court summarily denied the defen-
dant’s motion for reargument and reconsideration as
well.3 The plaintiff timely appealed.4
We begin by setting forth the legal principles that
inform our discussion and the standard of review perti-
nent to the plaintiff’s claim. Section 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, an order for
alimony or support pendente lite or an order requiring
either party to maintain life insurance for the other
party or a minor child of the parties may, at any time
thereafter, be continued, set aside, altered or modified
by the court upon a showing of a substantial change
in the circumstances of either party . . . .’’ (Emphasis
added.)
When the parties in a dissolution matter have a sepa-
ration agreement that has been incorporated into a dis-
solution decree, interpretation of that separation agree-
ment is ‘‘guided by the general principles governing the
construction of contracts.’’ (Internal quotation marks
omitted.) Issler v. Issler, 250 Conn. 226, 235, 737 A.2d
383 (1999). ‘‘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.’’ (Internal quotation
marks omitted.) Id. ‘‘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.’’ (Citation omitted;
internal quotation marks omitted.) Eckert v. Eckert, 285
Conn. 687, 692, 941 A.2d 301 (2008). ‘‘The construction
of a contract to ascertain the intent of the parties pre-
sents a question of law when the contract or agreement
is unambiguous within the four corners of the instru-
ment.’’ (Internal quotation marks omitted.) Taylor v.
Taylor, 117 Conn. App. 229, 231–32, 978 A.2d 538, cert.
denied, 294 Conn. 915, 983 A.2d 852 (2009).
Moreover, ‘‘[a]n appellate court will not disturb a trial
court’s orders in domestic relations cases unless the
court has abused its discretion or it is found that it
could not reasonably conclude as it did, based on the
facts presented. . . . In determining whether a trial
court has abused its broad discretion in domestic rela-
tions matters, we allow every reasonable presumption
in favor of the correctness of its action.’’ (Internal quota-
tion marks omitted.) Misthopoulos v. Misthopoulos, 297
Conn. 358, 372, 999 A.2d 721 (2010). ‘‘[T]o conclude that
the trial court abused its discretion, we must find that
the court either incorrectly applied the law or could
not reasonably conclude as it did.’’ (Internal quotation
marks omitted.) Emerick v. Emerick, 170 Conn. App.
368, 378, 154 A.3d 1069, cert. denied, 327 Conn. 922,
171 A.3d 60 (2017).
In the present case, the plaintiff argues that the court
abused its discretion when it modified the definition of
‘‘pre-tax compensation from employment’’ in the par-
ties’ separation agreement, which was incorporated by
reference into the judgment of marriage dissolution,
to include ‘‘income from all sources, including passive
income from capital gains, interest and dividends, and
income from business interests and other investments.’’
In his view, Gay v. Gay, supra, 266 Conn. 647–48, as a
matter of law, precluded the court from doing so. We
disagree.
In Gay, after a thirty-two year marriage, the plaintiff
wife brought an action seeking a dissolution of the
marriage. Id., 642–43. The court rendered a judgment of
dissolution that incorporated by reference a stipulation
entered into by the parties dated December 20, 1996.
Id., 643. The judgment provided, inter alia, that the
defendant husband must pay alimony to the plaintiff in
the amount of $730 per month. Id. On September 29,
1999, the defendant moved for a modification of the
alimony payments. Id. In his motion, the defendant
claimed that his retirement, and the accompanying
decrease in income, constituted a substantial change
in circumstances. Id. Furthermore, he noted that the
plaintiff’s income and assets had dramatically increased
so that her circumstances had changed for the better.
Id. After hearing arguments on the matter, the court
reduced the defendant’s alimony obligation to $1 per
year and ordered the parties to exchange copies of their
respective federal tax returns for the following three
years. Id. The court articulated the basis for its conclu-
sion that the parties’ income was now in parity and,
therefore, the alimony award should be modified. Id.
After making certain adjustments to the net income
reflected on the plaintiff’s financial affidavit, the court
found that the defendant had a net income of $1268
per week and the plaintiff had a net income of $1323
per week. Id. In its articulation, the court indicated that
it had included both short-term and long-term capital
gains in determining the plaintiff’s income for purposes
of the modification. Id. The court further indicated that,
in assessing the plaintiff’s income for 1999, it disre-
garded capital losses from a prior year that the plaintiff
had, for the purpose of calculating income tax, carried
over into 1999. Id.
On appeal to this court, we concluded that the trial
court had improperly included all of the plaintiff’s capi-
tal gains as income without determining how much, if
any, of those gains were generated from assets that
were acquired after the dissolution. Id., 644. As a result,
this court reversed the order of the trial court, and
remanded the case with an instruction to determine
whether the plaintiff had realized capital gains from
assets acquired after the dissolution. Id. The plaintiff
then petitioned our Supreme Court for certification to
appeal, which our Supreme Court granted. Id.
Our Supreme Court held that, ‘‘[a]t least where, as
is generally the case, capital gains do not represent a
steady stream of revenue, the fact that a party has
enjoyed such gains in a particular year does not provide
a court with an adequate basis for assessing that party’s
long-term financial needs or resources.’’ (Footnote
omitted.) Id., 647. The court concluded ‘‘that capital
gains are not income for purposes of modification of
an order for continuing financial support if those gains
do not constitute a steady stream of revenue. This is
true without regard to whether the assets from which
those gains are derived were acquired before or after
the dissolution.’’ Id., 647–48. The court went on to
explain that ‘‘[t]he fact that capital gains on property
distributed at dissolution may not be considered income
under [General Statutes] § 46b-82 does not mean, how-
ever, that changes in the value of such property,
whether realized or not, may never be taken into consid-
eration by a court in considering a modification of ali-
mony. The fact that the trial court has no authority to
modify the assignment of property made at dissolution;
see General Statutes § 46b-86 (a); does not mean that
the court cannot consider a change in the value of
that property in determining whether there has been
a substantial change of circumstances justifying the
modification of an alimony award.’’ (Emphasis omit-
ted.) Id., 648. Accordingly, the court affirmed this
court’s reversal of the judgment of the trial court on
alternative grounds and ordered this court to remand
the case to the trial court for a new hearing on the
defendant’s motion for modification. Id., 648–49.
Although the plaintiff contends that our Supreme
Court’s decision in Gay is ‘‘on all fours’’ with the issue
presented here, we find Gay materially different from
the facts of the present case. Gay involved a modifica-
tion of alimony pursuant to § 46b-86 (a), which requires
a court to consider the criteria set forth in § 46b-825
after a determination that there has been a substantial
change in circumstances. See General Statutes § 46b-
86 (a) (‘‘[i]f a court finds that a substantial change in
circumstances of either party has occurred, the court
shall determine what modification of alimony, if any, is
appropriate, considering the criteria set forth in section
46b-82’’). Our Supreme Court held that capital gains
should not be considered income under § 46b-82 if those
gains do not constitute a steady stream of revenue. See
Gay v. Gay, supra, 266 Conn. 647–48.
Gay did not involve a separation agreement like the
one incorporated by reference into the divorce decree
in the present case, expressly defining the term ‘‘pre-
tax compensation from employment’’ and setting forth
specific, contractual parameters for modifying that defi-
nition. In the present case, paragraph 4.5 of the parties’
agreement provides: ‘‘Any court of competent jurisdic-
tion, upon motion by either [p]arty, shall retain jurisdic-
tion to modify the definition of [pre-tax compensation
from employment] so as to ensure that both [p]arties
are treated fairly in accordance with the spirit of this
[a]greement. Neither [p]arty shall be required to demon-
strate a substantial change in circumstances with regard
to any such modification.’’ (Emphasis added.)
It is clear that the parties, vis-à-vis paragraph 4.5,
intended to give the court broad discretion to modify
the definition of ‘‘pre-tax compensation from employ-
ment’’ to ensure that the parties are ‘‘treated fairly in
accordance with the spirit of [the] [a]greement.’’
(Emphasis added.) Nothing in paragraph 4.5 of the
agreement references § 46b-82 or otherwise demon-
strates an intent to require a court to modify the defini-
tion of that term in accordance with § 46b-82. See Clark
v. Clark, 66 Conn. App. 657, 665, 785 A.2d 1162 (‘‘[t]he
court is not required, however, to consider all of the
§ 46b-82 criteria when modification of alimony is sought
pursuant to a dissolution agreement’’), cert. denied, 259
Conn. 901, 789 A.2d 990 (2001); see also Fazio v. Fazio,
162 Conn. App. 236, 243–44, 131 A.3d 1162 (‘‘a separa-
tion agreement that has been incorporated into a disso-
lution decree and its resulting judgment must be
regarded as a contract and construed in accordance
with the general principles governing contracts’’ (inter-
nal quotation marks omitted)), cert. denied, 320 Conn.
922, 132 A.3d 1095 (2016). The parties here clearly fore-
saw that the definition of ‘‘pre-tax compensation from
employment’’ might require modification in the future.
The plain language of paragraph 4.5 demonstrates that
they intended any such modification be done in accor-
dance with the ‘‘spirit of [the] [a]greement’’ to ensure
fairness, not in accordance with the criteria of § 46b-
82. The remaining language in paragraph 4.5 buttresses
this conclusion. It states that ‘‘[n]either [p]arty shall be
required to demonstrate a substantial change in circum-
stances with regard to any such modification.’’ That
provision conflicts directly with § 46b-86 (a) and is fur-
ther evidence that the parties did not intend to be gov-
erned by the statutes that otherwise apply to requests
for modifications of alimony.
If the parties had wanted to prohibit a court from
modifying the agreement’s definition of ‘‘pre-tax com-
pensation from employment’’ to include passive income
from capital gains, they could have included that limita-
tion in their separation agreement. See Ceddia v. Ced-
dia, 164 Conn. App. 266, 274, 137 A.3d 830 (2016)
(‘‘[w]hen the parties wished to preclude one aspect of
possible periodic alimony modification, they knew how
to do so’’). For example, in paragraph 4.3 of the agree-
ment, they expressly stated that the duration of alimony
payments ‘‘shall be non-modifiable . . . .’’ Moreover,
if the parties had wanted a court to modify the definition
by taking into consideration all the criteria of § 46b-82,
they could have said so in the agreement. Nation-Bailey
v. Bailey, 316 Conn. 182, 197, 112 A.3d 144 (2015)
(‘‘[i]ndeed, had the parties intended to import the reme-
dial aspect of § 46b-86 (b), in addition to its definitional
portion, they could have used more expansive reference
terms such as ‘in accordance with’ or ‘pursuant to’ ’’).
They did not do so.
In light of the foregoing, we are persuaded that the
parties’ agreement brings this case outside the purview
of Gay v. Gay, supra, 266 Conn. 641. As a result, and
upon our review of the record before us, we cannot
conclude that the court abused its discretion when it
modified the definition of pretax compensation from
employment to include ‘‘income from all sources,
including passive income from capital gains, interest
and dividends, and income from business interests and
other investments.’’
The judgment is affirmed.
In this opinion the other judges concurred.
1
Only the parties’ two youngest children were minors at the time of the
hearing on the motion to modify.
2
The plaintiff requested that the court amend its order as follows: ‘‘The
court modifies the separation agreement as follows: the definition of ‘pre-
tax compensation from employment’ set forth in paragraph 4.4 of the parties’
separation agreement will be modified to include income from all sources,
including passive income from interest and dividends.’’
3
The defendant has not appealed from the denial of her motion for reargu-
ment.
4
On March 10, 2020, the plaintiff filed a motion for articulation with the
trial court. The plaintiff requested that the court articulate its decision
to modify the definition of pretax compensation from employment in the
separation agreement. The court denied the motion for articulation. There-
after, the plaintiff filed a motion for review with this court. This court
granted the motion for review, but denied the relief requested. This court
sua sponte ordered the trial court to ‘‘rectify the record to include the
parties’ proposed orders, referred to [in the transcript of the hearing held
on August 19, 2019, which were] not included in the trial court file or
exhibits. If the parties stipulate and provide copies of the proposed orders,
the trial court may approve the stipulation and rectify the record without
a hearing.’’ The trial court approved the parties’ stipulation on October
29, 2020.
5
General Statutes § 46b-82 (a) provides: ‘‘At the time of entering the
decree, the Superior Court may order either of the parties to pay alimony
to the other, in addition to or in lieu of an award pursuant to section 46b-
81. The order may direct that security be given therefor on such terms as
the court may deem desirable, including an order pursuant to subsection
(b) of this section or an order to either party to contract with a third party
for periodic payments or payments contingent on a life to the other party.
The court may order that a party obtain life insurance as such security
unless such party proves, by a preponderance of the evidence, that such
insurance is not available to such party, such party is unable to pay the
cost of such insurance or such party is uninsurable. In determining whether
alimony shall be awarded, and the duration and amount of the award, the
court shall consider the evidence presented by each party and shall consider
the length of the marriage, the causes for the annulment, dissolution of the
marriage or legal separation, the age, health, station, occupation, amount
and sources of income, earning capacity, vocational skills, education,
employability, estate and needs of each of the parties and the award, if any,
which the court may make pursuant to section 46b-81, and, in the case of
a parent to whom the custody of minor children has been awarded, the
desirability and feasibility of such parent’s securing employment.’’