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Nadel v. Luttinger

Court of Appeals of Connecticut

October 4, 2016

SUE NADEL
v.
STEVEN LUTTINGER

          Argued April 11, 2016

         Appeal from Superior Court, judicial district of Stamford-Norwalk, Hon. Stanley Novack, judge trial referee [dissolution judgment]; Heller, J. [motion for contempt].)

          Samuel V. Schoonmaker IV, with whom, on the brief, was Wendy Dunne DiChristina, for the appellant (defendant).

          Steven R. Dembo, with whom were Caitlin E. Koz-loski and, on the brief, P. Jo Anne Burgh, for the appellee (plaintiff).

          Beach, Sheldon and Mullins, Js.

          OPINION

          BEACH, J.

         In this postdissolution action, the defendant, Steven Luttinger, appeals from the judgment of the trial court granting in part the motion for contempt filed by the plaintiff, Sue Nadel. He claims that the court erred in (1) categorizing a cash performance award received by the defendant as an asset to be distributed as property pursuant to the separation agreement, rather than as earned income to be distributed pursuant to provisions regarding alimony, and (2) finding the amount owed to the plaintiff. We disagree with the defendant's first claim, but agree with the second.

         The following facts and procedural history are relevant. The parties were married in November, 1991. The plaintiff filed for dissolution and, on December 17, 2013, a hearing was held. At that time, the parties presented a separation agreement to the court, Hon. Stanley Novack, judge trial referee. The dissolution judgment, which was rendered on January 8, 2014, incorporated by reference the parties' December, 2013 separation agreement.

         The agreement provided for alimony and for the division of property. Alimony was addressed in paragraph 2 of the agreement. Paragraph 2B provided that alimony was to be calculated with reference to the defendant's ‘‘earned income.'' The amount of the obligation was determined by a sliding scale: ‘‘(1) On the first $250, 000 of [the defendant's] earned income, both cash and non-cash, [the plaintiff] will receive 25%; (2) On $250, 001 to $500, 000 of [the defendant's] earned income, both cash and non-cash, [the plaintiff] will receive 20%; (3) On $500, 001 to $750, 000 of [the defendant's] earned income, both cash and non-cash, [the plaintiff] will receive 15%; (4) On $750, 001 to $1, 000, 000 of [the defendant's] earned income, both cash and non-cash, [the plaintiff] will receive 10%; (5) Over $1, 000, 000, [the plaintiff] will not share. (6) Connecticut General Statutes § [46b-86 (b)] shall apply.'' Paragraph 2C defined the defendant's ‘‘earned income'' as ‘‘all amounts paid to him for his personal services, including: wages, commissions, bonuses, consulting fees, finder's fees, or any other type of compensation both cash and non-cash he has the right to receive for his personal services.''

         Paragraph 2D provided that the defendant's ‘‘earned income will include both cash and non-cash compensation; provided, however, that [the plaintiff's] entitlementtoa percentage of [the defendant's] earned income will be satisfied first out of all cash paid to [the defendant] during a calendar year . . . . If [the defendant] should voluntarily defer any cash compensation, or shall voluntarily elect non-cash compensation in lieu of cash, then in that event, he shall be deemed to have received the voluntary deferral in cash.''

         The agreement contained other provisions regarding alimony that are not directly relevant here. It is clear from the agreement, then, that the plaintiff was entitled to a decreasing percentage share of the defendant's earned income as the amount of his income rose, and the agreement contemplated that both cash and non-cash remuneration would be subject to alimony.

         Obligations as to property division were addressed in paragraph 5. Paragraph 5A provided that ten specifically listed financial assets, not including the award in issue in this case, were to be divided equally at the time of dissolution.

         Paragraph 5B is critical to the analysis of this case. The heading of the paragraph is ‘‘AMC[1] Restricted Stock Awards and Units (husband).'' The paragraph provides: ‘‘The division of assets as equitable distribution shall include all restricted stock units and options that have been awarded to [the defendant] through the date of the dissolution of the marriage, including non-vested RSU's[2] and options. If and when non-vested awards of any kind become vested, then the [plaintiff] shall forthwith be entitled to her share thereof net of all applicable taxes based on the tax rate from the year in which the applicable taxes are imposed. Within 7 days after RSU's vest, the [plaintiff] shall receive her share, taking into account any appreciation or depreciation of said shares. Within 30 days after the filing of the [defendant's] tax return in which the receipt of the restricted stock units are reflected, the parties shall ‘true-up' in order to share equitably the tax burden on the vesting of the RSU's.'' Although paragraph 5B does not expressly state how the parties were to divide the net proceeds of assets subject to the paragraph, the parties agreed that such assets were to be divided evenly between them.

         During the relevant times, the defendant was employed by AMC. He participated in two incentive programs. One, the ‘‘AMC Networks Restricted Share Awards, '' though not directly in issue in this appeal, has been referred to by the parties, and facts concerning the program appear in the record. Pursuant to that program, the defendant received in 2011 a total of 4250 shares of restricted AMC stock, which did not vest until March, 2014. The defendant considered this ...


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