Sweeny v. Sweeny

519 A.2d 1237, 9 Conn. App. 498, 1987 Conn. App. LEXIS 791
Connecticut Appellate Court·Decided January 20, 1987·No. 4489·Published·Cited by 22 cases

Opinion

Spallone, J.

The defendant appeals from the post-judgment order of the trial court adjusting an award of unallocated alimony and child support and denying his motion for child support.

The parties were married on June 17,1967, and their marriage was dissolved on May 25,1983. The judgment of dissolution provided, in pertinent part, that the parties have joint custody of two minor children, issue of the marriage, with physical custody in the plaintiff mother, and that the defendant father pay the plaintiff $2450 per month as unallocated alimony and child support. Paragraph 3.7 of the agreement provided: “In [500] the event that either or both of the children are residing with the Husband, the parties agree to adjust the alimony payments to the Wife. Should the parties fail to agree, the issue of adjustment shall be submitted to the Superior Court at Stamford for determination as to the amount of the reduction of the Husband’s obligation for the payment of alimony.”

The parties’ daughter began living with the defendant in August, 1984, and their son commenced living with his father in March, 1985. The defendant’s motion for modification of physical custody was granted by agreement and, although joint custody remained, physical custody was transferred to the defendant. Because the parties were unable to agree as to the adjustment of alimony, the task was submitted to the court for its determination pursuant to the agreement. The court adjusted the alimony, reducing the amount payable by the defendant from $2450 per month to $1250 per month. At the same time, the court denied the defendant’s motion for child support. From these orders, the defendant has taken this appeal.

The defendant claims the trial court erred (1) in ordering the defendant to pay $1250 per month as alimony, (2) in failing to distinguish between alimony and unallocated alimony and child support, (3) in basing its decision upon facts not in the record, and (4) in denying the defendant’s motion for child support.

The defendant’s first claim is that the trial court erred in ordering him to pay alimony in the amount of $1250 per month. In determining the amount by which the unallocated alimony and child support should be adjusted because of the change in the children’s residence, the court was required to interpret the separation agreement that had been incorporated into the judgment of dissolution. Where a judgment incorporates a separation agreement, the judgment and [501] agreement should be construed in accordance with the laws applied to any contract. See Cogan v. Cogan, 186 Conn. 592, 596, 442 A.2d 1342 (1982); Beach v. Beach, 141 Conn. 583, 588-89, 107 A.2d 629 (1954). The trial court’s construction of the agreement is an issue of fact subject to review under the limited standard of whether it is clearly erroneous. Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 65-66, 485 A.2d 1296 (1985); Lavigne v. Lavigne, 3 Conn. App. 423, 427, 488 A.2d 1290 (1985). We will not disturb the actions of the trial court unless it abused its legal discretion in making this determination. The unquestioned rule is that great weight is due the action of the trial court and every reasonable presumption should be given in favor of its correctness. Kelepecz v. Kelepecz, 187 Conn. 537, 538, 447 A.2d 8 (1982); Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979).

The interpretation of the agreement is a search for the intent of the parties. Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 406-407, 365 A.2d 1086 (1976); Downs v. National Casualty Co., 146 Conn. 490, 494, 152 A.2d 316 (1959); Bridge-Mile Shoe Corporation v. Liggett Drug Co., 142 Conn. 313, 318, 113 A.2d 863 (1955). This intent must be determined from the language of the instrument and not from any intention either of the parties may have secretly entertained. Sturman v. Socha, 191 Conn. 1, 10, 463 A.2d 527 (1983); McDonnell v. McDonnell, 166 Conn. 146, 150, 348 A.2d 575 (1974); Klein v. Klein, 3 Conn. App. 421, 423, 488 A.2d 1288 (1985); B. Holden & J. Daly, Connecticut Evidence (1966 and Sup. 1983) § 83 (b). The court must consider the agreement as a whole and give efficacy to each part where appropriate. Sturtevant v. Sturtevant, 146 Conn. 644, 648, 153 A.2d 828 (1959); Baydrop v. Second National Bank, 120 Conn. 322, 327, 180 A. 469 (1935). Intention is an inference of fact and [502] the trial court’s conclusion is not reviewable unless it is one which the trier could not reasonably make. Heyman v. CBS, Inc., 178 Conn. 215, 228, 423 A.2d 887 (1979); Hydro-Hercules Corporation v. Gary Excavating, Inc., 166 Conn. 647, 652-53, 353 A.2d 714 (1974).

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Sweeny v. Sweeny, 519 A.2d 1237, 9 Conn. App. 498, 1987 Conn. App. LEXIS 791 (Colo. Ct. App. 1987).

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